Jordan v. Ball

| Miss. | Oct 15, 1870

Simball, J.:

The last will and testament of Jas. A. Jordan, deceased, was, on the 4th of November, 1867, propounded for probate to the probate court of Marion county, by Elizabeth R. Warren. And on the same da3^, application was made by her to the court for letters of administration to be granted to herself, William Warren, jr., and Needham L. Ball. The will was duly proved, and admitted to record, and the letters to execute it, committed to the applicants. The testator had deceased sometime in the previous month of October.

At the March term, 1868, Jesse P. Jordan, a resident citizen of North Carolina, by B. Taylor, his attorney in fact, preferred Ms petition to the probate court, suggesting that the sureties on the administration bond were insufficient; and that the letters were improvidently granted to the above named persons, because neither of them were next of kin to the deceased, and because such grant was made within sixty ■days after the death of said Jordan.

Jesse P. Jordan, on account of his non residence, prays that on the revocation of the letters of Elizabeth R,. Warren, Wm. Warren and N. L. Ball, administration be conferred on said B. Taylor, a citizen of Marion county.

The will appointed no executor.

Petitioner claims and avers that he is a brother of the deceased, and next of kin, and therefore entitled to the administration ; the deceased, never having been married, his prop ert.y would go to his brothers and sisters, and their descendants. The prayer was that the letters of administration be revoked, or if that could not be done, that a new and better bond be made.

Elizabeth R. Warren, having married one Applewhite, surrendered her letters, and was discharged.

Wm. Warren, jr., and N. L. Ball, administrators, in their answer, call in question the right of the petitioner to. invoke any-of the relief he asks, because of'a want of interest in the estate, on the allegation that Jordan, by his will, gave all of his property to his neice, the said Rebecca Warren, and her four children. The will and the probate thereof, are in the record. The probate court required a new bond from the administrators, but dismissed the petition in so far as it sought a revocation of the letters of administration.

The only question for our decision is, was the decree correct ? It has always been considered in England, under the statutes of 31 Edward III, ch. 11, and 21 Henry VIII, ch. 5 (which are much like our statute in fixing the order of preference in the grant of administration), that the object of the statutes was to give the management of the property to the person who has the beneficial interest in it. Thus, in Bridges v. Duke of Newcastle, in 1712, Lord Hollis died intestate, Bridges claimed administration as next of kin; the effects were vested in the Duke of Newcastle by act of parliament, to pay debts. The judge of the prerogative court, and afterwards, on appeal, the delegates held, that the next of kin were excluded, on the ground that he had no interest, and granted administration to the Duke of Newcastle. 3 Phillim. 381.

In Young v. Pierce, Freeman Ch. 496, administration was refused to the next of kin, because she had released all her interest, and the letters were committed to the part}'’ beneficially entitled. So, too, with repect to administration cum testamento cmnexo — the errors of the statutes will be disregarded, and the next of kin pretermitted, and the letters given to the residuary legatee. 1 Williams Executors, 310, 311, 386.

The order of preference prescribed by the Code, 438, art. 61, is, first, the husband and wife, and then such others as may next be entitled to distribution — selecting from those standing in equal right the person, in the opinion of the court, best fitted to manage the estate.

If there shall be no executor named in any last will and testament, then administrtion, with the will annexed, shall be granted to the person who would be entitled to administration, according to the rule prescribed for granting administration. Bev. Code, 435, art 52.

In Byrd v. Gibson, 1 How., 568, art. 61 was brought into discussion. It was intimated that the word “representatives” meant relatives of. the deceased. The administration was refused to Byrd, he not being a distributee, the deceased having left childrén.

Husband and wife and u distributees ” have the right secured by statute, but as regards others, it is a matter within the sound discretion of the court.

The representatives or “ relatives ” of the deceased are preferred to all others. But of these relatives the husband or wife, and distributees, have the first right. If none of these apply within sixty days from the death of intestate, then a-creditor, or other fit person, maybe appointed.

Applying this construction to art. 52, where no exector has been appointed, the administrator to execute the will should be taken from the relatives of the deceased, giving the same order of preference as in case of intestacy.

According to this rule, let us see how it applies to Jesse E. Jordan, the petitioner in the probate court.

The testator was never married. ITis relations consist of brothers, neices and nephews. Their right would be prior to a creditor or a stranger. If it were a case of intestacy, the selection should be made from those “ entitled to distribution.” But the testator devised his whole estate to his niece, Elizabeth E. Warren, and her four children. Mrs. Warren is one of the relations of kin to the deceased; and as she takes the estate in part, under the will, and as the petitioner, Jesse Jordan, can prefer no claim, as distributee, and therefore has no preference over other relations, we are of opinion that Mrs. Warren had a superior right to him to the administration. And the probate court, therefore, was right in committing the office to her, on her application. But, if mistaken in this view, the person having the prior right must apply within the sixty days after the death of the decedent, the preference, within that time, continues, and may be successfully asserted, although administration, in the meantime, may be committed to another. As inMuirhead v. Muirhead, 6 S. & M., 454, when the letters were granted to the son, shortly after the decease of his father, the widow applied within the sixty days, for the grant to her. It was held that she was entitled; the court remarking, however, “ By the statute, the privilege of the husband or wife may lie lost by their failure to apply for letters within sixty days from the death of the intestate.”

Jesse P. Jordan did .not apply for revocation of the administration until long after the lapse of the sixty days. If he ever had a preference over Mrs. Warren, it has been lost.

There was nothing improper in Mrs. Warren asking, in her petition, that Ball and Warren should be associated with her in the administration, nor was there an abuse of .discretion in the probate court in acceding to the request.

Let the decree of the probate court be affirmed.