140 Iowa 615 | Iowa | 1909
— The decedent John Weaver died intestate on January 10, 1907, and his funeral occurred on January 11, 1907. He left no widow surviving him. He left surviving him, however, one son, J. W. Weaver, of Oklahoma, his only child. Substantially all of his estate consisted of $528 in money, which was upon his person at the time of his death. He was a resident of Tama County, and died in such county. On January 29th the attorney of the son, J. W. Weaver, acting in his behalf, obtained from the district judge of that county sitting in chambers a formal order for the appointment of George M. Lamb, a resident of Tama County, as administrator of the estate, fixing the amount of his ^required bond at $2,000. Such order, together Avith the proper bond, Avas presented to the clerk and filed, and letters of administration were issued and delivered on January 31st. Notice of such appointment Avas published in due form for three weeks, on February 7th, 14th, and 21st. On February 9th the appellee Frank Weaver, a brother of the deceased, filed his application that he be appointed administrator of the estate. On February 16th, he filed a petition asking the removal of appellant George M. Lamb, on the general ground that his appointment had been obtained by fraud and by imposing upon the court. In his application, and also in his petition, Frank Weaver averred that he was a brother and next to kin to the deceased, and expressly averred that the deceased left no AvidoAV nor child surviving him. On March 1st the appellee filed a substituted petition, wherein he averred that the deceased did leave surviving him a son, J. W. Weaver, of Okla
Code, section 3297, provides that, where an executor is not appointed by will, administration shall be granted: (1) To the husband or wife of the deceased; (2) to his next of kin; (3) to his creditors; (4) to any other person the court. may select. The argument in support of the action of the court is, in substance, that the brother of the deceased was a “next of kin”; that although the son was a nearer kin, and his right to administration had prefer
The order of the court below is therefore reversed, and the case will be remanded for further action consistent with this opinion. — Reversed.