Estate of Swart ( 1899 )

Opinion by

Mb. Justice Fell,

If tbe widow and the son of the decedent had merely renounced their rights to administer, the register would have been at liberty to select any one personally qualified from the class next entitled, under the act of March 15, 1832, to administer: Levan’s App., 112 Pa. 294. The discretion vested in the register is limited to a selection from each class entitled in its order, and neither he nor the parties renouncing can pass by one of the children competent to administer and vest the appomtment in a stranger: Williams’s App., 7 Pa. 259; McClellan’s App., 16 Pa. 110. But the renunciation was in favor of one of the class next entitled after the widow and the son, and was coupled with a request for her appointment. This nommation the register was not at liberty to disregard except on the ground of personal unfitness or legal incompetency. The right of the party entitled to administer to nominate a person of the next class has been firmly settled by our decisions: Ellmaker’s Est., 4 Watts, 34; Bieber’s App., 11 Pa. 157; Shomo’s App., 57 Pa. 356.

Whether it was shown by the testimony produced before the register that the widow was an unfit person to administer the estate because of her advanced age, infirmities and want of business knowledge need not be considered. It certainly was not shown that she was incompetent to make a choice among her children. The action of the register M appointmg all three of the daughters mdicates a desire on his part to treat them fairly and to prevent an unseemly dispute, but in so doing he overlooked the legal rights of the appellants, and it cannot be sustained.

The decree of the orphans’ court is reversed, and it is now ordered and decreed that the register of Greene county do grant letters of administration on the estate of Jacob Swart, deceased, to Florence V. Dunn.