Mabry v. Mabry , 65 Ga. App. 132 ( 1941 )

A widow who is not disqualified to act as administratrix of the estate of her deceased husband may name a qualified person to act in lieu of herself. The joining with her of certain children of deceased, in making the selection, will be treated as surplusage. The court did not err in overruling the motion for new trial.

DECIDED MAY 8, 1941. REHEARING DENIED JUNE 19, 1941. R. A. Mabry died intestate leaving surviving him his widow, two sons, and two daughters. One of the sons applied for permanent letters of administration on the estate. The widow and the two daughters filed objections to the appointment of the applicant, in which they selected, over their individual signatures, James V. Carmichael, to serve as administrator. The ordinary appointed Mr. Carmichael and the case was appealed to the superior court of Cobb County. The judge of the superior court directed a verdict in favor of the appointment of Mr. Carmichael. The exception is to the overruling of a motion for new trial, made by the son who applied for the letters.

Two contentions are made by the plaintiff in error. One is that a widow who is not disqualified to act as administratrix of her husband's estate may not appoint or select another qualified person to act in her stead. The second is that she was not such a person interested as a distributee as would entitle her to join with other distributees in making a selection. Whatever may be the law in other jurisdictions it has been held in this State that a widow who is not disqualified may select one who is qualified to act in her stead (Rivers v. Alsup, 188 Ga. 75,2 S.E.2d 632), and that a sister of the deceased, who was the one nearest of kin, might select one qualified to act in her stead. Dawson v. Shave, 162 Ga. 126 (132 S.E. 912). If a sister, the nearest of kin, may select, it seems to follow indisputably that one having a higher order of preference than a sister may also select. Even if it can be said that the statement in the Rivers case is obiter, and we do not think it is, the ruling in the Dawson case demands, as a logical consequence, the conclusion herein stated. The ruling in the Dawson case can not be sustained, in our judgment, upon any hypothesis other than that the one first entitled to administer may make the selection. Since the widow is the first in order of preference, her selection of a qualified person precludes the right of any other person or persons in a lower order of preference to express any choice or to act as administrator. Dawson v. Shave, supra. Since the appointment of the administrator upon the selection of the widow was the only legal course, and there is no question of his qualification, it is unnecessary to rule on the other contention of the plaintiff in error. The action of the daughters was mere surplusage. The court did not err in overruling the motion for new trial. Judgment affirmed. Stephens, P. J., and Sutton, J., concurspecially.