Popwell v. Nail , 27 Ga. App. 97 ( 1921 )

Hill, J.

(After stating the foregoing facts.) Section 3943 of the Civil Code (1910) prescribes the rules which shall govern in the granting of letters of administration. It provides:' “In the granting of letters of administration of' any kind the following rules shall be observed; the applicant being in all cases of sound mind and laboring under no disability.” Following this language ten subsections or paragraphs are set out. The first of tírese subsections or paragraphs gives the right to “the husband or wife surviving, irrespective .of age.” The second provides: “ The next of kin, at the time of the death, according to the law declaring relationship and distribution, shall be next entitled,” etc. The third paragraph is specially applicable to the case now under consideration and is quoted in full: “ If there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of 'expressing a choice, shall be appointed.” It will be noticed that in this section the person selected in writing by a majority of those interested as next of kin and equal in degree is not restricted to one of the next of kin, but the language is “the person.” This manifestly means that the person selected . in writing by the majority of those interested as next of kin . and as distributees of the estate and who are capable of expressing a choice shall be appointed. The language is mandatory, leaving no discretion on the part of the court making the appointment. The subsections or paragraphs following subsection 3 are not applicable to the facts in the present case, until paragraph 6 is reached. This paragraph is as follows: “ The persons entitled to an estate may select a disinterested person as administrator, and, if otherwise qualified, he shall be appointed.” Considering these two paragraphs together, the inference is clear that the choice of a majority of the next of kin entitled to the estate, if those making the selection in writing are capable of expressing a choice, and if the person so selected is otherwise qualified, “ shall be appointed.” There is in the record no evidence attacking the capability of the two sisters to express a choice, nor is there any attack upon the character and qualifications of the person who was selected in writing by them as administrator. It follows, therefore, from the law declared in the above subsections that the two sisters of the decedent, being a majority of the next of kin, were entitled as a matter of right to have the person whom they had selected as administrator appointed. It was not a matter of discretion with the court, and there was no issue of fact for the jury, and it would have been proper-for the trial judge to have directed a verdict accordingly. The learned trial judge, instead of doing this left the question of the selection to the .jury, giving instructions fully as to the rules of law set out in the code and quoted above, for the guidance of the jury in arriving at a conclusion. The verdict, under the undisputed facts, was demanded as rendered.

This view of the law makes it unnecessary to consider the evidence attacking the competency or qualifications of the brother who had been appointed by the ordinary as administrator, and also makes it unnecessary to consider any of the assignments o£ error as to certain portions of the charge or the failure to charge. In support of the ruling above made, that the verdict was demanded under the law and evidence, we cite the following cases: Halliday v. DuBose, 59 Ga. 269; Mattox v. Embry, 131 Ga. 283 (62 S. E. 202); Leverett v. Dismukes, 10 Ga. 98; Murdock v. Hunt, 68 Ga. 164; Mandeville v. Mandeville, 35 Ga. 243. We think, however, that the sections of the code above referred to are directly controlling on the questions in the record.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.