184 P. 1017 | Utah | 1919
A petition for the appointment of an administrator of the estate aforesaid was filed by one Elizabeth Condon, a daughter of the deceased, on the 24th day of January, 1918. The petitioner, among other things, alleged that Richard Slater died in Weber county, Utah, on or about the 25th day of November, 1893; that he left an estate “consisting of several small' tracts of real property * * * of the probable value of $1,000,” etc. The foregoing facts are not in dispute. She further stated in her petition the names, places of residence, etc., of all the heirs, together with all the necessary jurisdictional facts. She prayed that letters of administration be “issued to her or some other suitable and competent person.” James Slater, appellant, on June 10, 1918, filed a cross-petition, in which he prayed that letters of administration be issued to him upon the grounds that he was the only surviving son of the deceased, that a majority of the heirs desired and requested that he be appointed administrator of said estate, and that the petitioner, Elizabeth Condon, is a married woman, and for that reason disqualified to act as administra-trix of the estate.
A hearing was duly had upon the petition and cross-petition, pursuant to which hearing the court.made findings and entered an order or judgment as follows:
“The petition of Elizabeth Condon, praying for letters of administration of the estate of Richard Slater, Sr., deceased, and the contest and cross-petition for letters of administration of James A. Slater, both coming on regularly to he heard this day, and due proof having been made to the satisfaction of the court that due and legal notice of the hearing of said petitions has been given by the clerk of this court, and it being proved by the oath of Elizabeth Condon that said Richard Slater, Sr., died on the 25th day of November, 1893, intestate, in the county of Weber, state of Utah, and that he was a resident of said county and state at the time of his death, and that he left estate in said county of the probable value of $1,300, and that the rental value thereof is twenty-five dollars per annum, and the court having heard the evidence of the respective parties, and it appearing therefrom that neither the petitioner nor cross-petitioner should he appointed, but that Howell*254 Slater is a fit and proper person to he appointed administrator of the estate of the said Richard Slater, Sr.: It is ordered that letters of administration upon the estate of said Richard Slater, Sr., deceased, be issued to the said Howell Slater u'pon his taking the oath and filing a bond according to law in the penal sum of $2,000.
“Dated September 14, 1919.”
Tbe material errors assigned are: (1) That the court erred in appointing Howell Slater administrator: and (2) that it erred in refusing to appoint the appellant. These two assignments raise the same question. There are two other assignments to which reference will be made hereafter.
Appellant insists that under our statute it was the duty of the court to appoint him, in view that he was the son of the deceased and was competent to act. Comp. Laws Utah 1917, section 7596, fixes the right of priority of appointment as follows: (1) Surviving widow or husband; (2) the children; (3) the father or mother; (4) the brothers and sisters; (5) grandchildren1;" (6) the next of kin. Section 7597, among other things, provides:
“When there are several persons equally entitled to administration, the court may grant letters to one or more of them. * * * If a dispute arises as to relationship between applicants, or if there is any other good, and sufficient reason, the court may appoint any competent person." (Italics ours.)
Section 7598 reads as follows:
“Letters of administration must be granted to any applicant, though it appears that there are other persons having better rights to the administration, when such persons fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves.”
Section 7599 is immaterial here, and section 7600; so far as material, provides that in case any person who is interested in an estate objects to the appointment of a married woman, she "must not be appointed administratrix.”
Appellant’s counsel, in their brief, state the gist of their contention thus:
“James A. Slater is both ‘suitable’ and ‘competent,’ and we contend that upon his cross-petition he was entitled to letters, as a matter of right.”
Counsel for respondent contends, stating his contention in his own language:
“The provisions of section 7598 require persons entitled, or having better rights to administration, to make application within a -reasonable time for such appointment, and, if they fail to make such application, letters should be granted to any qualified applicant.”
That states the law more favorable to the appellant than it is stated in section 7598. That section provides that in case those who have preferential rights to the administration “fail to appear within three months after the death of the decedent and claim the issuance of letters to themselves,” then letters “must be granted to any applicant.” Of course that implies that such applicant be a competent person to act as administrator. .
In view of the conceded facts in this case, therefore, James
“Under statutes giving to certain persons the preference, right to letters of administration, and limiting the time within which such preferred persons may, apply, it is generally held that such preference is lost, by failure to apply within the time fixed by the statute.”
In 1 Woerner, The American Law of Administration, at section 243, the law is stated thus:
“The preference given by statute may be waived or renounced. * * * The renunciation may be spontaneous, or upon citation of some person interested; and it will be presumed — that is, the exclusive right to administer will be deemed — to have been waived, if letters are not applied for by the party preferred within the period prescribed for such purpose by statute.” 1
The same doctrine is státed in 11 R. C. L. section 22, page 35.
The following authorities fully sustain the text quoted from Church and Woerner: Forester v. Forester, Adm’r, 37 Ala. 398; Wheat v. Fuller, 82 Ala. 572, 2 South. 628, Atkinson v. Hasty, 21 Neb. 663-666, 33 N. W. 206; Withrow v. De Priest, 119 N. C. 541, 26 S. E. 110; In re Sprague’s Estate, 125 Mich. 357, 84 N. W. 293; Rodes v. Boyers, 106 Tenn. 434, 61 S. W. 776; Rice v. Tilton, 13 Wyo. 420, 80 Pac. 828; In re Sutton’s Estate, 31 Wash. 340, 71 Pac. 1012; McLean v. Roller, 33 Wash. 166, 73 Pac. 1123, 1124; Ramp v. McDaniel, 12 Or. 108, 6 Pac. 456; In re Miller, 32 Neb. 480, 49 N. W. 427.
In the case of Withrow v. De Priest, supra, the court, in the course of the opinion, said:
"The plaintiff’s present application was made subsequent to December 5, 1895. The subject of granting letters of administration, etc., is regulated by Code, chapter 33. Preference is given to certain persons successively, provided they assert their rights within the time prescribed by law. Public poli'cy and the rights of distributees and creditors require that the estates of deceased persons be settled within a due and reasonable time. If those that have the preference*257 fail to act within six months (section 1394) they must he taken to have renounced or waived their rights. As the question has been fully considered and decided in this court, we need not pursue it any further. Hill v. Alspaugh, 72 N. C. 402; Garrison v. Cox, 95 N. C. 353.”
In 18 Cye. 84, it is said :
“Where all the persons who under the statute have a right to administer have renounced or otherwise lost their right, the court has a considerable discretion in the appointment of the administra-trator.”
Sucb must necessarily be the law, and to that effect are the authorities.
In the case at bar all those who are given a preferential right under section 7598 manifestly forfeited or lost the same by delaying nearly twenty-five years before applying for the appointment- o.f an administrator to administer the estate, and it seems that if Mrs. Condon,' who seems to hold the largest interest in the estate, had not then applied, none of the other interested parties would have done so. Indeed, .the appellant waited for almost five months after Mrs. Con-don
In any view that can be taken, therefore, appellant had lost his preferential right to be appointed administrator, and even though he was still qualified to act, yet his
It is, however, insisted that the court erred “in permitting the petitioner to testify as to-an oral agreement with James Slater.” Even though the court had erred in
The judgment is affirmed, with costs to respondent.