Willis v. Willis

19 S.E.2d 190, 66 Ga. App. 751, 1942 Ga. App. LEXIS 295

• Court: Court of Appeals of Georgia
• Decided: March 11, 1942
• Docket: 29308.
• Status: Published

Opinions

Per Curiam.

The only question in this case is-'whether a husband is disqualified to act as administrator of his wife’s estate because he has deeded his interest in the estate to his minor children by deed of gift before the time of his application for the appointment. The contention of the caveator is that the husband must have an interest in the estate at the time of the application for the appointment. Assuming for the sake of argument that the husband had no interest of any kind which would of itself entitle him to the appointment, we can find no authority for the proposition that a husband or wife must have any interest, other than relationship, to qualify, if he or she be otherwise qualified. Under the Code, § 113-1202, the intention seems to be to give preference to the surviving spouse, irrespective of financial interest. There is no ambiguity in the language, and there is no justification for changing the unambiguous provision by judicial interpretation. If it had been intended that a husband or wife should be financially interested in the estate at the time of the application for letters of administration it would have been easy to include the requirement. The law must be applied as'written. Parker v. Batchelor, 40 Ga. App. 669 (151 S. E. 118). The court did hot err in charging the jury that the husband would be entitled to the appointment as administrator of his wife’s estate, despite the fact that he had made a deed of gift to his minor children before he filed his application for the appointment, if he was otherwise qualified. The court did not err in overruling the caveator’s motion for new trial.

Judgment affirmed.

Sutton and Felton, JJ., concur.