Summary
In Stribling, Mr. Washington died intestate survived by three children from his first marriage, and his second wife. Within the thirty day period, one of the decedent's daughters petitioned the chancery court, which granted Letters of Administration to her appointee, Mrs. Stribling. The petition stated that the decedent's heirs were his three daughters without mentioning the second wife. More than thirty days after Washington's death, the widow received notice of this appointment and promptly filed her petition to be substituted as administratrix.
Summary of this case from Matter of Estate of MorelandOpinion
December 13, 1948.
1. Executors and administrators — appointment of preferred person on application made after thirty days — discretion of the chancellor.
The provision in the statute, Section 525, Code 1942, to the effect that upon the failure of a person preferentially entitled to be appointed administrator to apply therefor "within thirty days from the death of an intestate, the court may grant administration to a creditor or any other suitable person" is primarily for the benefit of creditors, and where the interests of creditors have not been and would not be prejudiced, it is within the authority of the chancellor to appoint the widow of the intestate on her application although made after the elapse of the thirty day period, and to remove a stranger appointed within that period, the chancellor having a large measure of discretion in such a matter.
Headnote as approved by Smith, J.
APPEAL from the chancery court of Lowndes County, J.H. GILLIS, Chancellor.
H.T. Carter, for appellant.
While it is true that the law gives preference to the surviving husband or wife and such others as may be next entitled to distribution, if not disqualified to administer the estate, this right or privilege does not necessarily extend beyond the thirty (30) day period from the death of an intestate. George Washington died on or about the 14th day of May, 1947, and Mrs. Mary E. Stribling qualified as administratrix of his estate on a sworn petition of his daughter, Emma Washington Cunningham, who petitioned the court that Letters of Administration be granted to Mrs. Mary E. Stribling, and this was done on July 5, 1947, almost two months after George Washington died. Hence, we see that the alleged widow, if she is the widow, lost whatever right or preference given to her by law to be appointed administratrix of said estate.
It is the contention of appellant that since Rebecca Washington did not apply for letters of administration within the thirty day period granted to her by law, at the expiration of that time any of the heirs had a right to petition the court for letters of administration upon the estate of George Washington, deceased. In this case one of the daughters of George Washington presented her sworn petition and requested the court to appoint appellant, and it is the further contention that the court was without authority to remove appellant as administratrix, unless and until it has been shown by competent evidence that she was incapable, incompetent and unable to administer the estate or unless there is shown maladministration or other legal grounds which would authorize the court to remove her.
This court held in the case of Kevey v. Johnson, 150 So. 532, that this right or privilege created in favor of the husband or wife to be appointed administrator or administratrix of the deceased spouse's estate would be lost as statutory right by failure to apply within the thirty day period. We here quote the pertinent part of that decision for the court's information.
"The answer must be that the statute, in giving preference to the husband created a privilege in his favor which would be lost as a statutory right by his failure to apply for the letters within the thirty (30) day period. Muirhead v. Muirhead, 6 Smedes Marshall 451, 454. The appointment of another within the stated period is not void, but the appointee is subject to removal, upon the husband's application within the thirty (30) days, provided, of course, the husband is a fit person for the appointment. Giglio v. Woollard, 126 Miss. 6, 15, 88 So. 401, 14 A.L.R. 616; Ames v. Williams, 72 Miss. 760, 17 So. 762, 11 R.C.L. 86; 23 C.J. 1033. Fridley v. Farmers' and Mechanics' Savings Bank (Re Price), 136 Minn. 333, 162 N.W. 454, L.R.A. 1917E, 544." The court further said in this same opinion:
"It is not necessary for us to express any opinion as to what would be the rights, if any, of the husband in an application by him for appointment after the elapse of thirty (30) days, another person having been theretofore appointed, for in this case the husband failed not only to apply within the thirty (30) days but in fact he did not seek to be substituted as administrator after the thirty (30) day period."
We respectfully submit that the children of George Washington, deceased, not knowing and not recognizing Rebecca Washington as their step-mother, nor as the alleged common-law wife of George Washington, their father, had a right under the law to petition the court to grant letters of administration to Mrs. Mary E. Stribling. The learned chancellor held in his opinion that the appointment of Mrs. Mary E. Stribling, as administratrix was legally taken by her in good faith, but sought to justify her removal on the grounds that Rebecca Washington did not know that it was necessary to administer deceased's estate.
If the lower court was correct in his opinion of removing the administratrix in this case and appointing the alleged widow, then the widow would have a right to ask the court to remove an administrator or an administratrix which some creditor of any deceased person had petitioned the court to appoint to pay his just obligations. In other words, appellant takes the position that after the expiration of thirty days any of the heirs of George Washington had a right to petition the court to appoint an administrator or administratrix and the privilege granted by statute to the surviving spouse was lost and the administrator or administratrix so appointed should not be removed except for some legal cause, and in the instant case no such charges or causes were made or proved. D.A. Burgin, and Wm. G. Burgin, Jr., for appellee.
As stated by the chancellor in his findings in this case, the public policy of the state gives preference to the widow of the deceased in the administration of the estate. We are here confronted with the situation where the appellee had no notice or knowledge of the necessity of an administration; where, therefore, she did not apply for letters on the estate of the deceased until after the expiration of the thirty day period provided for by Sec. 525 of the Mississippi Code of 1942. We make no contention that the appointment of Mrs. Mary E. Stribling as administratrix of this estate was not a valid and legal appointment, or that the said administratrix did not undertake the administration in good faith. We do, however, contend that her appointment, on the petition of Emma Washington Cunningham, without notice to or knowledge of such application or petition by the widow of the deceased, and without any mention of the widow of said deceased as an heir in said petition, clearly jeopardizes appellee's rights, and evidences the clear intention on the part of Emma Washington Cunningham of cutting appellee off, if possible, and of denying to appellee her legal rights as the widow of the deceased; and that, therefore, it is necessary for the protection of appellee's rights and interests, that she, the appellee, be appointed administratrix in the place and stead of the appellant, who represented and favored Emma Washington Cunningham.
The correctness vel non of the chancellor in removing the appellant and substituting the appellee as administratrix in this case is one of first impression here. Appellant cites the case of Kelvey v. Johnson, 167 Miss. 775, 150 So. 532, as deciding this question in his favor, but a close consideration of the opinion in that case will show that the precise question presented here was left open by the court, which said: "It is not necessary for us to express any opinion as to what would be the rights, if any, of the husband in an application by him for appointment after the elapse of thirty (30) days, another person having been theretofore appointed." 150 So. at page 532.
We have searched for a case deciding this question, but have failed to find one in point.
We submit that the chancellor was correct in his ruling that the law favors administration of estates by the surviving spouse of the deceased; that in removing the appellant the chancellor was within the valid exercise of his discretion in the premises, based on his personal contact with the witnesses, and his understanding of the facts and situation presented by this particular case; and that it is clear that he was not clearly erroneous, or manifestly wrong in the matter, and that his ruling should be allowed to stand by this court.
There is only one question in this case which we regard as entitled to discussion, and that is, does the mere lapse of thirty days from the death of an intestate inexorably debar the surving spouse from priority right to letters of administration upon the estate, such spouse failing to apply within such period? Here, it involves the widow of the intestate.
The litigation was had in the Chancery Court of Lowndes County. A colored man by the name of Washington departed this life intestate, being survived by three children of his first marriage — his consort therein having predeceased him — and by his second wife, whose union to him was by virtue of a common-law marriage. Much evidence, pro and con, as to the validity of the common-law marriage was heard by the Chancellor, who correctly decided it to be a valid marriage.
Shortly after the death of her father, and within the thirty-day period, one of the daughters of the decedent filed a petition in the Chancery Court, praying that appellant, a member of the white race, be granted letters of administration upon his estate. This petition contained this misleading averment: "That such deceased left surviving him Emma Washington Cunningham, daughter, an adult, Willie Mae Washington, aged 19 years, and George Washington, Jr., a minor, his children, as his heirs." It will be noted that all information as to the wife and widow was withheld from the Chancellor, although it is manifest from the evidence that the petitioner knew her, and of her. There is no intimation that Mrs. Stribling did, however. Letters were issued, Mrs. Stribling qualified, and published notice to creditors.
The widow knew absolutely nothing about these proceedings until she observed the notice to creditors in a newspaper, more than thirty days after the death of her husband. She had not known that administration was necessary, and here it may be said that such necessity appears to be very doubtful. She at once obtained an attorney, filed a motion to set aside the appointment of Mrs. Stribling as administratrix, and prayed that letters of administratrix thereupon be issued to her, as the widow of her intestate husband, by virtue of her prior right under the statute. The Chancellor granted her prayer, and entered decree accordingly. Mrs. Stribling having contested the matter, and feeling aggrieved by the adverse decision, appealed.
The pertinent part of the statute involved here is as follows: "And the court shall grant letters of administration to the relative who may apply, preferring first the husband or wife and then such others as may be next entitled to distribution, if not disqualified, selecting amongst those who may stand in equal right the person or persons best calculated to manage the estate; or the court may select a stranger, or a trust company organized under the laws of this state, or a national bank doing business in this state, if the kindred be incompetent. And if such person do not apply for administration within thirty days from the death of an intestate the court may grant administration to a creditor or to any other suitable person." Section 525, Code 1942. In this connection, we have proclaimed the care of the law for creditors of a decedent by declaring they have the first claim against the estate, and it is the paramount duty of the administrator to protect their interests. Stone et al. v. Townsend, 190 Miss. 547, 549, 1 So.2d 237.
(Hn 1) Obviously, the provision of the statute, "and if such person do not apply for administration within thirty days from the death of an intestate the court may grant administration to a creditor or to any other suitable person," is primarily for the benefit of creditors. It seems to be the policy of the law that recalcitrant heirs will not be permitted to hamper creditors to the predjudice of creditors' rights against an estate by failure promptly to institute administration thereof. This view is supported by Section 533, Code of 1942, with direction to the county administrator to take over the administration if no application for letters testamentary or administration has been made within sixty days of the death of the decedent. Also, by Section 535, Code of 1942, which provides for the appointment of a county sheriff as administrator in certain cases where there was failure of a petition for letters before appointment of that official by the clerk.
So, it may be seen that the period of thirty days applies, generally, only secondarily for the benefit of persons inferior in priority to the right to administer, although failure of the surviving husband or wife, as the case may be, to qualify as administrators within the thirty-day period, of course, would open the door for those of subsequent degree of eligibility, as fixed by the statute, subject to revocation, in proper cases.
In addition, here the original petition by the daughter, as to whom the widow had prior right to administer her husband's estate, withholds from the Chancellor all information as to the widow, and positively stated that the decedent was survived by three children, when, in truth, he was also survived by the widow. The widow knew nothing at all of these proceedings, as stated. She did not know an administration was necessary; and, while it may not always be said that such lack of information as to the necessity of administration will prevent loss of priority, still in logic and reason the chancellor should, and, as we believe, does have discretion in the matter to determine the question according to the circumstances of each individual case. The exercise of such discretion would be final, barring abuse thereof.
We deem the action of the chancellor in the case at bar to have been the exercise of a sound discretion, and was proper under the conditions in the record before us. Appointment and revocation, within the limits of the law, are both held to be in the discretion of the Court by the South Carolina Court. Thompson v. Hucket, 2 Hill's Law S.C., 347. However, without here measuring how far the discretion of the Chancellor extends in either category, we are of the opinion that he has a large measure of discretion, within limitations. For instance, we have held that the right of the husband, wife or distributees, is a legal one, unless incompetent. And, as regards others, the matter is within the sound discretion of the court. Byrd v. Gibson, 1 How. 568. The language of the statute itself reposes substantial discretionary powers in the Chancellor. In this State, the nearest approach to adjudication on this subject is the case of Kevey v. Johnson, 167 Miss. 775, 150 So. 532. In that case we held that the statutory right might be lost by a spouse who failed to apply for letters within the thirty days, but there the husband did apply within thirty days. However, the Court did not pass upon the matter of the Chancellor's discretion after the lapse of thirty days, the Court saying: "It is not necessary for us to express any opinion as to what would be the rights, if any, of the husband in an application by him for appointment after the elapse of 30 days, another person having been theretofore appointed, . . ."
We, therefore, pass upon that matter in this case in consideration of the circumstances of it, and affirm the decree of the chancery court in removing the appellant and directing letters of administration issue to appellee as widow of the deceased, George Washington, Sr.
Affirmed.