106 Tenn. 434 | Tenn. | 1901
Tliis is a contest over tlie right of priority to- administer upon an estate. Thomas Boyers, Jr., died intestate in April, 3895, leaving; a widow, son and daughter.
The only question before us is, Should the County
Neither the widow nor next of kin made any application to administer for about five years after the death of the intestate, and no excuse or reason is giyen for the delay. In the case of Wilson v. Hoss, 3 Hum., 142, Hoss, who was neither a creditor nor next of kin, was appointed administrator, and the Oourt held that his appointment was prima facie evidence of the right to administer, and the letters should not be re-voked or recalled without evidence that he was not entitled, and that another -was so entitled.
It was held in the ease of Varnell v. Loague, 9 Lea, 161, that the next of kin had the right, as against a public administrator, to administer within six mouths from the death of intestate, but if letters were granted to the public administrator within the six months, they would not be void, but might be revoked at the instance of the next of kin within the six months. In Pritchard on Wills, Sec. 545, it is said: “The statute does not expressly limit the time which shall be allowed persons entitled to preference in granting an administration to assert such preference by making application, but other statutes pro
Without fixing six months as an invariable rule, we think that it is a safe and reasonable one. In any event the right of priority cannot continue indefinitely and without limit, and we think it is waived by failure to assert it within five years, as in this _ case, without giving some good reason for the delay. We are therefore of opinion there is error in the action of the County and Circuit Courts in holding the appointment of Boyers to be good, and in removing Rodes and Turner as administrators, and the judgment of said Courts is reversed, and the letters of Boyers are canceled, and the right of Rodes and Turner to continue in the administration is declared.
The petitioners will pay the cost of the proceeding.