112 Tenn. 176 | Tenn. | 1903
delivered the opinion of the Court.
This is a contest between the next of kin and the largest creditor in regard to the right to administer upon the estate of John Smith, Jr., who died in Davidson county on the nineteenth of February, 1903, intestate, never having been married, and leaving no next of kin in Tennessee. On the next day, the twentieth of February, 1903, Fitzgerald, as the largest creditor of the deceased, was appointed his administrator by the county •court of Davidson county. Five days later James B. Smith, claiming to be next of kin of the deceased, filed his petition in the county court for the purpose of having the letters previously issued to Fitzgerald revoked, .and himself appointed as such administrator. It was
Within three days after the filing of the petition the defendant, Fitzgerald, filed his answer thereto. A full history of the life and the business connections of the deceased was given from the time of his arrival in Nashville, some years previously, up to the date of his death. The conditions of affairs that existed at his death, and. respondent’s relation thereto, were set forth in detail. Many personal disqualifications were alleged against the petitioner as administrator, and many reasons given why the respondent should be retained in the office. It was said that the petitioner was a nonresident of the State; that he was possessed of little property, and, if not actually insolvent, was so near thereto as not to be a proper person to administer on the estate; that he had. been in Nashville previously under assumed names, and aroused grave suspicions among the creditors. It is al
Upon the issues presented tie county judge made tie following order: “Upon tie petition and answer thereto, proof and argument of counsel, tie court is of opinion tiat tie rights and tie equities are with tie defendant, and tiat tie petition should be and is dismissed.”
The cause was heard before the judge in the court below, when the following occurred, as appears from the bill of exceptions: “This case was called for trial on May 23,1903, and the witnesses on both sides were called to the clerk’s desk and sworn, and directed to retire to the anteroom. Thereupon counsel for the petitioner began the reading of the petition filed in the cause, when he was interrupted by the court, and asked to state the pleadings and the issues presented thereby, which was accordingly done by counsel for- both sides, and during the presentation counsel fon petitioner criticised the appointment of Mr. Fitzgerald as administrator, when the court remarked that that was unnecessary, and that, if the court was of the opinion that any discretion was allowed the county judge under the statute for the appointment, he would not disturb that discretion, as he was convinced not only of the wisdom of the county judge, but as to the character of the man appointed, but that it appeared to him that the question was one of law —that is, under the statute, could any other be appointed administrator, except the next of kin, where such person applied therefor? To this suggestion of the court counsel on both sides assented, and thereupon it was admitted that James B. Smith was the brother and only next of kin of the deceased, that he was a nonresident of
‘Respondent Fitzgerald moved the court for a new trial, and to vacate the judgment which had been entered.
The grounds of the motion were: The error of the court in holding the statute mandatory -in its character and giving preference to the next of kin, and in holding that this included also nonresidents. Second, that the defendant was prevented from making his proper defense by the ruling of the court at the beginning of the case that he would not disturb the discretion of the county court on the facts, provided any discretion existed; and later on announcing his decision that the county judge might have discretion in certain cases, but that there must be affirmative proof to sustain it. This inconsistent rule of the court prevented the introduction of proof which defendant would otherwise have offered. Third, that the judgment entered on May 25, 1903, should be vacated and annulled, because it recites that the cause was heard upon the pleadings, proof, argument, and admissions of counsel, whereas no proof was
This motion for a new trial and to vacate the former order was heard by the court on June 15, 1908, and disposed of in the following entry:
“On May 23,1903, the same being a former day of the term of court, an order was entered determining the ■questions involved in this suit, and remanding the case to the county court for an execution of the decree therein. ,
“Said entry is hereby amended so as to show the fact that upon the trial of said cause his honor was of the opinion, and so' held, that the statute being determined was mandatory, and that James B. Smith, being the next of kin, was entitled as a matter of law to qualify as the administrator of John Smith. And from the ruling and opinion the defendant excepted,” etc.
It is assigned as error that the circuit court held the statute to be mandatory as to the preference to be followed in'the appointment of an administrator, and that he also erred in refusing to grant the motion for a new trial.
' The statute upon which the court based this construction is section 3939 of Shannon’s Compilation, which provides as follows: “When any person shall die intestate in this State, administration shall be granted to the widow of such person, if she make application for the same. For the want of such application on the part
We are of opinion that the practice and proceeding of the trial judge in this case was erroneous, and prevented a hearing of the matter on its merits. The statute prescribing who may administer is mandatory in a certain sense of that term; that is, as between parties who are fit and suitable for the office, the preference given by the statute should be maintained, and not departed from by the county court. But if the next of kin should be an infant, an idiot, an ex-convict, such person would not be entitled, and should not be appointed. So illiteracy or poverty, old age or physical infirmity, immorality or criminality, are not legal disabilities, but such things go to the personal fitness of the applicant, and will be considered by the court in selecting between persons of the same degree of kindred to the deceased, and may be of sufficient importance to justify the court in appointing one more remotely related, and having less claim to the office.
The error committed by the court was in attempting to decide the questions involved upon a mere construction of the statute without considering, the personal qualifications of the petitioner.
If nothing should appear against the right of the peti
The cause was for hearing before the trial judge upon its merits and de novo, so that, no matter what may have been the opinion and finding of the county judge, the circuit judge should have heard the facts, and should have for himself determined whether the petitioner was disqualified from holding the office and executing the trust or not.
The proof that had been taken in the county court was not a part of the record in the circuit court, and could not be looked to to determine the disqualification of the petitioner. The record, as presented to the circuit judge, showed the petitioner to be the next of kin, and therefore entitled to administer, unless his unfitness should be made to appear. The judgment of the county court, being appealed from, was set aside, and of no probative or presumptive effect. Tfie case as presented to the trial judge was therefore a moot court case on the literal construction of the statute, and the facts necessary to determine the merits were not properly before the court, and it cannot avail that both court and counsel agreed or submitted to this proceeding. The judgment of the court below is reversed at cost of appellee, and the cause is remanded for further proceedings.