Freeman v. Worrill , 42 Ga. 401 ( 1871 )

McCay, J.

Section 2458, paragraph 5. of the Code, is in these words, on the subject of the appointment of creditors as administrator : “ When no application is made by the next of kin, a creditor may be appointed; and among creditors, as a general ride, the one having the greatest interest will be preferred.” The next paragraph is in these words : “The persons entitled to an estate may select a disinterested person as administrator, and if otherwise competent, he shall be appointed.”

This is an insolvent estate. The next of kin are out of the way, and the contest is between creditors.

Clearly, it is not simply the largest creditor that is entitled. The words of the Code are, the one having the greatest interest will, as a general ride, be preferred. Under this rule, a creditor of superior dignity, whose claim would sweep the estate, would surely have preference of one whose debt would get nothing, though it were much the largest in amount. In this case, it would appear, from the evidence, that neither of the contestants stand much chance of getting anything, since the judgments and mortgages will, probably, absorb the assets, and they both are only holders of promissory notes.

The very language of the Code implies that, in the case of creditors, the rule of preference is not imperative. The words are, “as a general rule.” This implies that other circumstances may be considered. Under our system, the jury is, under the rules of law, to decide. Ought they not to have the facts? The wishes of the majority of those at interest is, as it seems to us, a material fact; the residence of the parties is another. We think the Court erred in excluding these facts from the jury. Especially do we think this, as to the wishes of the mortgage and judgment creditors who have the largest interest in the estate.

J udgment reversed.