| Ga. | Apr 13, 1888
Tanner and Huss were competing applicants for the administration on the estate of Mrs. Heath. It appears from the. record that Mrs. Heath first intermarried with E. Story-Brooks, and by him had one child. She afterwards procured a divorce from Brooks, and subsequently intermarried with two other men, who died before she did, and by whom she had no children. At her death she left one child, Berrien Brooks, the child above referred to, who was her solo surviving heir at law, and who survived his mother but a few months.
It appears from the record that Tanner, one of these applicants, was neither an heir at law nor next of kin to Mrs. Heath, nor was he a creditor. Huss, the other competing applicant, was a creditor of the estate. Tanner, however, was supported in his application by a building and loan association, which claimed to bo a creditor of Mrs. Heath, and the largest creditor, its claim amounting to some fifteen hundred dollars; and he was also supported by the recommendation of E. Story Brooks, the first husband of the intestate, who was the only heir at law of her sole heir at law. Upon the trial of the case, the jury rendered a verdict in favor of Huss, under the instructions of the court; and thereupon Tanner excepted.
We think the statute'(code, §2494) settles who was entitled to the administration. It provides that in the granting of letters of administration, the following rules shall be observed: “ 1. The husband or wife surviving, . . shall be first entitled. 2. The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled; but if the party died testate, the person most beneficially interested under the will shall have the preference. Relations by consanguinity shall be preferred to those by affinity. 3. 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 dis
In this case, none of the kin applied for letters of administration; the intestate had no next of kin at the time of the application, so far as appears from this record. The contest for administration was between Huss, a creditor, and Tanner, who was not a creditor. The court in effect ruled that, under such circumstances, Huss was entitled to the administration. We think he was. Under-the code, there is no authority on the part of the creditors to nominate a person, unless they nominate a creditor. Where there are several creditors applying for administration, the ordinary may exercise his discretion in granting letters to one of the creditors; as a general rule, the creditor having the greatest interest, if he be otherwise qualified, shall be appointed. But here there was but one creditor applying for this administration; and we think he was entitled to it, over an applicant who was not a creditor, nor next of kin, nor in any way interested in this estate. His being supported in his’ application by certain creditors of the estate, he not being a creditor himself, would make no difference; they had no authority to nominate him. Nor does the fact that his application was supported by Brooks, the first husband of the intestate, make any difference. Brooks is not an heir at law of Mrs. Heath; for she had been divorced from him; the bonds of matrimony, accord