Brown v. King

Blackford, J.

At the February term, 1840, of the Probate Court in. Ohio county, the clerk of the Court reported that he had, in vacation, on the 30th of January, 1850, granted to Jerusha Brown, Daniel Tapley, and Hazlett E. Dodd, letters of administration upon the estate of John M. Daniels, deceased, who died intestate, and that said administrators had given separate bonds with sureties for the discharge of their duties, and had taken and subscribed the oath required by law.

The letters of administration, the bonds, and the oath, are set out in said report, and appear to be in proper form.

The administrators, thereupon, moved the Court to confirm said appointment, and produced an account in favor of said Jerusha Brown against the estate of the deceased, amounting to 762 dollars. This amount appear *521 ed to have been sworn to by said Jerusha on the 25th of January, 1850.

The administrators also produced a written notice to the clerk signed by said Jerusha, stating that she should claim the appointment of administratrix, as the largest creditor of the estate, and that she desired Daniel Tapley and Hazlett E. Dodd to be associated with her in the administration. This notice was dated on the 25th of January, 1850, and appeared to have been filed by the clerk on the same day.

The confirmation of said report was objected to by John F. King; who, at the same time, moved for the appointment of himself and one Thomas Summers as administrators of said estate.

King introduced a written notice given by himself to said clerk, stating that he was a creditor of the estate, and should, as soon as the law permitted, apply for letters of administration. This notice is dated January 17th, 1850, and was filed on the same day by the clerk. King, also, on making his motion, presented an account in his own favor for 265 dollars and 70 cents against said estate, and also an account of one Williams against said estate for 236 dollars and 79 cents; which accounts were sworn to on the 4th of February, 1850. Williams renounced any right he might have to the administration to Summers and King.

The administrators then produced an account of one E. G. Brown against said estate for 149 dollars and 35 cents, which account appeared to have been sworn to on the 4th of February, 1850.

The above was all the evidence in the cause.

The Probate Court declared the clerk’s appointment of administrators to be void, and appointed T. Kimpton and L. North, administrators.

It is contended that the right to administration was controverted before the clerk, and that, therefore, he had no authority to act in the case. The statute gives the clerk authority to grant letters of administration in vaca *522 tion, when the right to administration is not controverted. R. S. 506. It was shown that King gave notice to the clerk, on the 17th of January, 1850, that he, King, was a creditor of the estate, and that he should, as soon as the law permitted, apply for letters of administration. But it does not appear that he ever applied to the clerk for letters, or showed him, by an account verified according to the statute, that he, King, was a creditor of the estate. It cannot be said, therefore, that the right to administration was controverted before the clerk.

It is also contended that it was entirely discretionary with the Probate Court, to ratify or set aside the clerk’s appointment. But the law is not so. The statute says that the Probate Court, for any good cause shown, may supersede the letters of administration granted by the clerk; but that if no valid objection appears to his grant, the same shall be ratified by the Court. R. S. p*. 507. It is clear, therefore, that the Court is bound, in such cases, to ratify the clerk’s appointment, unless some valid objection be made against it.

Where there is no widow or next of kin (and there does not appear to have been any in this case); the largest creditor in the state may claim letters of administration. R. S. p. 503. In the case before us, the clerk’s appointment rests on the ground that Mrs. Brown was the largest creditor, and that she desired Tapley and Dodd to be associated with her in the administration. To impeach that appointment, the accounts of King and Williams against the estate were given in evidence. But if their accounts, properly verified, had been before the clerk when Mrs. Brown’s application was made, they would not have affected her right to the appointment; she being the largest creditor. It is true that Tapley and Dodd, two of the administrators, were not creditors; but that makes no difference'. Mrs. Brown requested that those persons should be associated with her in the administration, and the clerk was therefore authorized to join them with her in the appointment. R. S. p. 504.

D. Kelso, for the appellants. J. Morrison and S. A. Major, for the appellees.

We are, for these reasons, of opinion that the Probate Court erred in setting aside the clerk’s appointment of administrators, and appointing others.

Per Curiam.

The judgment is reversed with costs. Cause remanded with instructions to the Court to ratify the clerk’s appointment. Costs here.