19 S.E.2d 190 | Ga. Ct. App. | 1942
Lead Opinion
A husband is entitled to appointment as administrator of his wife's estate even though before the filing of his application he has conveyed his interest in her estate by deed of gift to his minor children, where he is otherwise qualified.
Judgment affirmed. Sutton and Felton, JJ., concur.
Dissenting Opinion
As stated in the opinion of the majority, the sole question in this case is, is a husband entitled *752
to appointment under the laws of Georgia, as administrator of his wife's estate, where, before making application therefor, the husband by deed of gift conveyed his interest in the estate to his children? While the right of a particular person to letters of administration on the estate of another is controlled by statute, ordinarily the right of administration follows the right to the estate. 21 Am. Jur. 407, citing Bryan v. Rooks,
While it is the almost universal rule that where it becomes necessary or proper to appoint an administrator of the estate of a deceased married woman her surviving husband is entitled to the appointment in preference to all other persons, and this is the rule in Georgia, the right of the husband may be lost where he has released to his minor children all of his interest in the estate; in which event he is not entitled to administer thereon. 23 C. J. 1035, note 97, citing Marshall v. Beall, 6 How. (47 U.S.) 70 (
In Marshall v. Beall, supra, there was an agreement by which the husband disposed of his interest in the wife's property before her death. To the same effect see Ward v. Thompson, 6 Gill J. (Md.) 349. The court held that where the husband had entirely surrendered or abandoned his right to participate in the estate of his deceased wife he "therefore was not entitled to administer upon her estate." In Fowler v. Kell,
In 35 A.L.R. 1511, the annotator cites Re Davis,
106 Cal. 453 (39 P. 756 ) for the proposition that where a widow contracted away her inheritable interest in her husband's property she was not entitled to administer on his estate. In the Davis case the court ruled as follows: "The wife contracted away her inheritable interest in her husband's property and with that right went the right to administer upon his estate." It would seem that, although the Georgia statute provides that the husband is entitled to administer on the wife's estate, this is predicated on his interest therein on her death intestate; that the right to administration follows the right to the estate, and therefore where the husband, before or after the death of his wife, surrenders this right to share in her estate he at the same time surrenders and abandons his preferred right under the statute to administer the estate. When the husband applied for the letters of administration he did not have an interest in the estate. After the wife's death he had parted with his interest in her estate.
For these reasons I dissent from the opinion of the majority which is to the effect that the husband is entitled as a matter of right to administer his wife's estate if he is otherwise qualified, even though after the wife's death he had abandoned or surrendered his interest therein before his application for appointment as administrator. Such a holding is out of harmony, in my opinion, with the law on this question in England and in this country. Our statute must be construed in the light of the common law on which it is based. See Parker v. Batchelor,