Razor v. Mehl ( 1900 )

Comstock, J.

—The petition in this cause alleges that John L. McPherson died intestate on the 30th day of November, 1898, at Kosciusko county, Indiana, of which county he had been an inhabitant since “his removal to said county in the month of September, 1898, from Elk-ha,rt county”; that the petitioner was, on the 16th day of January, 1899, appointed administrator of said decedent’s estate by the Kosciusko Circuit Court; that decedent, at the time of his death, yas the owner of a farm and some per-' sonal property situate in Elkhart county; that on the 12th day of December, 1898, Abraham C. Mehl (appellee) “was duly appointed by the Elkhart Circuit Ooprt administrator of the estate of the decedent, all of which is in the possession of said Mehl.” The petitioner asks that Mehl be removed from his trust, and that he be required to turn over to the appellant said property, upon the ground that the Elkhart Circuit Court had no jurisdiction to make the appointment. To this petition the court •,sustained a demurrer for want of facts. Appellant declining to plead further, the court adjudged appellee to be the legal administrator. The ruling of the court upon the demurrer is the only error assigned upon this appeal.

The statute provides that after the death of an intestate letters of administration shall be granted in the county, first, where at his death the intestate was an inhabitant. §§2380, 2381 Burns 1894, §§2227, 2228 Horner 1897.

It appears from the petition that the decedent was an inhabitant of Kosciusko county at the time of his death. It appears, also, that before the time of twenty days within which, under the statute, letters of administration are to be issued to certain persons in the order named upon application,' appellee was appointed administrator by the Elkhart Circuit Court. Authority to grant letters of administration is wholly statutory. Jeffersonville R. Co. v. Swayne, 26 Ind. 477; Croxlon v. Renner, 103 Ind. 223.

From the averments of the petition, the court was without jurisdiction to appoint appellee. “When it is shown there was no jurisdiction, the decedent being domiciled at the time of his death in another county * * *. It is the duty of the court, upon application of any party in interest or even ex mero motu to annul or revoke letters granted.” It has been decided, however, that letters issued in the wrong county of the state of which the decedent was an inhabitant at the time of his death are not void, but voidable only.- Woerner’s American Law of Administrators, §268. Rice’s American Probate law and Practice, 337.

The circuit courts of Elkhart and Kosciusko counties had concurrent probate jurisdiction. Elkhart county having first assumed jurisdiction in the case before us, it retained exclusive jurisdiction until its action was set aside. It follows that the issuance of letters in Elkhart county was valid until revoked; and as there can not be two valid administrations .within this State upon the same estate, the administration in Kosciusko county was void. The grant of letters to appellant conferred no authority nor interest which authorized him to institute this proceeding to revoke the letters issued to the appellee. Coltart v. Allen, 40 Ala. 155. See, also, Cunningham v. Tully, 154 Ind. 270.

Appellee has not filed a brief, but we presume that this was the view taken by the trial court. Judgment affirmed.