40 Ga. App. 669 | Ga. Ct. App. | 1929
The sole question to be determined in this case is whether or not a person selected in writing by a majority of the next of kin of an intestate whose estate is insolvent is entitled to administer the estate in preference to a creditor of the intestate..
Counsel for the plaintiff in error cite»the decision of the superior court by Judge Berrien, in Sturges v. Tufts, reported in R. M. Charlton’s Reports, 17. The decisions there reported while entitled to great respect as emanating from learned jurists are not binding as precedents. In that case Judge Berrien held that “when an estate is not competent, or barely so, to the payment of debts, in granting administration, a creditor will be preferred to the next of kin.” The decision of Judge Berrien is based upon the theory that since the payment of debts must precede distribution, the next of kin can not have an interest in an insolvent estate, and, consequently, has no claim to the administration. That case was referred to and distinguished by the Supreme Court in Lynch v. Lively, 32 Ga. 575. In the latter case the Supreme Court referred to the Tufts case as being one in which there was no contest upon the question of the insolvency of the estate, but held that in the case before them there was an issue on that question, and
In the Tufts case, supra, Judge Berrien seems to have based his decision, upon the common-law rule laid down for the appointment of an administrator cum testamenlo annexo, since he says that in such case the administration is "committed to a residuary legatee, in preference to the next of kin, because they have in that case no interest.” But it would seem that under the common law and express provisions of statutes administrators under wills were appointed.
It is worthy of note that both the decision of Judge Berrien in the Tufts case (January term, 1811), and that of Justice Jenkins in Lynch v. Lively (May term, 1861), were handed down prior to the adoption of the Code of 1861, which became operative January 1, 1863. In that Code, § 2461, the rules for the appointment of administrators were laid down almost (and, so far as this ease is concerned, exactly) as they now exist. It was provided that "the husband or wife surviving, irrespective of age, shall be first entitled,” and the "next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled ■” and that “if there be several of the next of kin, equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed.” It was further provided that "where no application is made by the next of kin, a creditor may be appointed.” (Italics ours.) It would thus seem to have been the plain intent and purpose of the codifiers to provide that in all cases the next of kin, or the person selected in writing by a majority of the next of kin, should, as a matter of right, have preference over a creditor.
It is argued by counsel for the plaintiff in error, in his able and exhaustive brief, that stress must be laid upon the word "distribution,” as contained in subsection 2 of the Civil Code (1910), § 3942, and upon the word "distributees,” as contained in the third subsection of § 3943, and that since the next of kin are not, and can not be, distributees of an estate which does not amount to enough to pay the debts of the intestate, the provisions of these two subsections can not have application in the case at bar, and a
It is interesting also to note that in the first adjudicated case after the adoption of the first code, Mandeville v. Mandeville, 35 Ga. 243, the Supreme Court said: “Where a majority of the next of kin select, under the code, a fit person for administrator, the ordinary must appoint him.” The law there announced has been substantially followed in numerous decisions by the Supreme Court and by this court. In none of these cases has there been any intimation that the rule would not be made to apply in case an estate is insolvent.
As has been seen, the plain, unqualified, and mandatory provision of the statute is but a substantial codification of the common law. Both under the common law and under the statute, the next of kin, with exception save as to fitness, is given the right to administer. Much might be said as to the wisdom and propriety of the rule when applied to insolvent estates, but to depart from the plain and unequivocal mandate of the statute, in order to read into it something which might perhaps better conform to our personal ideas of exact justice or propriety, is not within the province of this court. Whatever may have been the sufficient or inadequate reason in the minds of the lawmakers, what they actually provided seems plain and unmistakable, and by that we are bound. It may be that the right to administer, with its attendant emoluments, is to be regarded as in the nature of an interest in the estate belonging to the next of kin. If so, the next of kin, even of an insolvent intestate, are not entire strangers to the estate. Nor does it follow, if such a right be construed as an interest, that such an interest would be subject to the claims and demands of creditors. It may be the purpose and intent of the law that whatever might be the condition of the estate, the right to administer, if nothing else, remains in the next of kin as an inherent right and benefit.
Judgment affirmed.