Rodes v. Boyers

61 S.W. 776, 106 Tenn. 434

• Court: Tennessee Supreme Court
• Decided: February 16, 1901
• Status: Published

Opinion

Wilkes, J.

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.

He was indebted at the time of his death to J. J. Turner by judgment for $1,478.25, and this seems to have been his only debt. He left but little estate.'. Ho year’s allowance, homestead or dower, was assigned, and no administrator was appointed until January, 1900, when O. E. Rodes was, at the instance of J. J. Turner, the creditor, appointed and qualified. Thereupon the son, daughter and her husband filed a petition in the County Court to remove Rodes and to have the son, Thomas Boyers, junior, appointed* in his stead, the widow' having died in the meantime. The petition stated that there was but little personal estate, and that the administration had been imprudently granted and illegally issued to Rodes; and that while Turner was a creditor Rodes was not. Thereupon J. J. Turner made application and was joined with Rodes and gave bond and took out letters. Upon hearing in the. County Court the letters granted to Rodes and Turner were revoked and canceled, and Thomas Boyers, Jr., was appointed in their stead. Rodes and Turner appealed to the Circuit Court. In the meantime Turner had filed a bill in Chancery to sell certain lots belonging to the estate for satisfaction of his debts. On hearing in . the Circuit Court the action of the County Court was affirmed, and Rodes and Turner have appealed to this Court and assigned error.

The only question before us is, Should the County Oourt liave revoked the letters granted to Bodes and Turner and appointed Boyers in their place ? The statute (Shannon, § 3939) provides that administration shall be granted to the widow in the first instance if she applies, second to the next of kin, and third to the largest creditor.

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 provide for committing administration to a public administrator, and for the appointment of an administrator in chancery. after six months from the death of an intestate; thus in effect limiting the time within which a superior right to administer shall he asserted to six months as against an appointment made after that time, unless the delay is satisfactorily accounted for.

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.