Welsh v. Manwaring

Dodge, J.

The right of administration, while a very valuable one, is not inherent, but statutory. It may be given or withheld in the wisdom of the legislature. Under this power *379 our legislature lias provided, by sec. 3807, Stats. 1898, that-administration shall be granted first to the widow, surviving; husband, or next of kin, or to the person whom such relatives. may request to have appointed, if suitable and competent to-discharge the trust. This statute is clearly mandatory, and; in itself declares its only exceptions. Such statutes have uniformly been treated as controlling' the action of the courts-of prohate, and disobedience thereof has been deemed to constitute error subject to review in appellate tribunals. Stebbins v. Lathrop, 4 Pick. 33 , 43; Cobb v. Newcomb, 19 Pick. 336 ; Todhunter v. Stewart, 39 Ohio St. 181 ; State ex rel. Adamson v. Collier, 62 Mo. App. 38 ; Breen v. Pangbom, 51 Mich. 29 , 16 N. W. 188 ; Sargent's Estate, 62 Wis. 130 , 22 N. W. 131 . By subd. 2 of the same section, this right of the-next of kin is limited to the case where he applies within thirty-days after the death, and when he dr the person nominated by him is suitable. When those conditions fail, and' not till then, do the creditors acquire any right over the nomination of an administrator; hence the appointment of respondent as permanent administrator cannot be justified by the request of certain creditors.

These statutes would seem so direct and clear as to need' but their mention to make plain the appellant’s right to have-appointed the person requested by him, as to whose competency or suitability no question is raised; but the respondent, and apparently the court below, deemed these plain provisions controlled by sec. 3819, Stats. 1898, relating to the-appointment of the public administrator in certain cases. That section provides in substance that when any intestate-leaves no widow, surviving husband, or next of kin known-to the county court, living in this state, the court, upon its-own motion or upon the application of the public administrator, shall, if it deem necessary, grant administration to the public administrator, who may then proceed with the administration, “until administration . . . shall, upon. *380 proper application of some person entitled to apply therefor, be granted to some other person.” This quoted clause seems to have been wholly overlooked by the respondent in making his contention that, whenever no widow or next of kin of an intestate is found in the state, administration is to be granted absolutely to the public administrator, and that, as a result, •sec. 3819 in effect limits sec. 3807 to the case of relatives resident in the state. That contention is wholly inconsistent with the idea of sec. 3819, which obviously provides merely for a temporary situation, and authorizes appointment of the public administrator only until those having lawful right under sec. 3807 shall make proper application. Hence we ■conclude that when the next of kin, within thirty days after the death of this intestate, made due application for the appointment of a competent and suitable person resident in this state, he was absolutely entitled thereto, and that the refusal •of such appointment was error.' By the CJourt. — The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment in accordance with the foregoing opinion; appellant’s taxable costs to be payable out of the estate.