Munsey v. Webster

Perley, J.

By the Revised Statutes, chapter 158, § 2, “ administration of the estate of any person deceased shall be granted, first, to the executor named in the will of said deceased-; secondly, to the widow or any of the next of kin, or such suitable person as they may nominate; thirdly, to one of the devisees or creditors ; and fourthly, to such other person as the judge may think fit.” By the fifth section of the same chapter, “ no- person shall be appointed to administer any estate until the several *127 persons previously entitled thereto shall either have voluntarily renounced such trust in writing, or have neglected for thirty days after the death of any person, upon whose estate administration is to be granted, to apply for such administration.”

The widow and next of kin are placed by the statute in the second class of those who are entitled to administration. The judge of probate has no power to appoint a stranger administrator till the widow and next of kin have severally renounced the administration, or neglected to apply for thirty days, or have nominated some suitable person for the trust. The appellant was one of the next of kin, of legal capacity to administer, has not renounced the administration, nor neglected to apply for thirty days, and must be taken to have been a suitable person. The judge, therefore, had no power to appoint the appellee, unless he was nominated by the widow and next of kin, according to the statute. To make such nomination, the widow and next of kin, who are entitled to administer, must all concur in it. Such is the plain meaning and the obvious intention of the statute. If the widow and next of kin severally renounce the administration and nominate another suitable person, the judge is bound to appoint the nominee. This provision of the statute for the nomination of the administrator by the next of kin, was not intended to take from the widow or next of kin any right they had before, but to give them the additional right, in case they severally declined to administer themselves, to agree in the nomination of another person, whom the judge would be bound to appoint.

This power of nomination was introduced by the statute of July 2d, 1822, and is not found in the earlier law of February 3d, 1789. The widow has no preference before the next of kin, and has no power to nominate an administrator, as substitute for herself, to the exclusion of the right which the statute gives to the next of kin. Cobb v. Newcomb, 19 Pick. 336 .

The decree of the judge of probate must be reversed, and the administration granted to the appellee recalled.