Opinion
33455.
DECIDED JUNE 9, 1951.
Appeal; from Greene Superior Court — Judge George S. Carpenter. January 6, 1951.
Fred A. Gillen, M. C. Barwick, for plaintiffs in error.
Joseph G. Faust, contra.
Upon the trial of a caveat filed by seven of twelve interested heirs and by the party selected by them in writing to be administrator, to an application for permanent letters of administration, the evidence demanded the finding that a majority of those interested in the estate were in favor of one other than the applicant, notwithstanding that two of the caveators had previously signed a written request that the applicant be appointed. The subsequent act of these two in signing a request that another be appointed as a administer and in thereafter joining in and prosecuting a caveat to the applicant's petition, amounted to a revocation of their former request in favor of the applicant, and the ordinary, and the superior court on appeal, erred in finding in favor of the applicant.
DECIDED JUNE 9, 1951.
L. P. Maxey died intestate on July 14, 1950, leaving twelve heirs all of equal degree. Seven of these heirs signed requests that Robert G. Bryan be appointed administrator. Before Bryan field his application to the ordinary two of those who had signed such requests joined in a written request with the other five heirs that Charles F. Johnson be appointed permanent administrator. Thereafter Bryan field his application to be appointed permanent administrator and Johnson and the seven heirs who had signed requests that he be appointed permanent administrator jointed in a caveat to Bryan's application, praying that the application be disallowed and that Johnson be so appointed. The ordinary being disqualified because of relationship to one of the parties, the clerk of the superior court, acting in his place, after a hearing, appointed Bryan and the caveators appealed to the superior court. Upon the trial of the case the jury found in favor of Bryan, the caveators made a motion for a new trial on the general grounds and on three special grounds, The trial court overruled that motion, and the exception here is to that order.
"In the granting of letters of administration of any kind, the following rules shall be observed, the applicant being required, in all cases, to be of sound mind, and to be laboring under no disability. . . 3. If there shall be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed." Code, § 113-1202. If the person thus selected by a majority of such heirs be competent and laboring under no disability, neither the ordinary, nor the jury on appeal to the superior court has any discretion in the matter, but must appoint the person so selected. Pate v. Pate, 28 Ga. App. 798 (2) ( 113 S.E. 50); Davis v. Davis, 33 Ga. App. 628 ( 127 S.E. 779).
There is no dispute that two of the heirs, after signing a written request that Bryan be appointed administrator, changed their minds, singed another written request that Johnson be appointed, and thereafter joined in the caveat to the application of Bryan. Under such circumstances, we think it is clear that upon the trial of the caveat in the court of ordinary the majority of the interested parties were in favor of the appointment of Johnson and that the same was true upon the trial of the case in the superior court. It is immaterial that these two persons had previously selected Bryan. Then had changed their minds and made that change known in the most notorious way possible, before the applicant had field his application, by simply signing a request that another be appointed, and by thereafter joining in a caveat to Bryan's application. No other form of writing or course of action could have been more effective to revoke their former request. Upon the trial of the question in the court of ordinary, the ordinary must base his order on the facts as they exist at that time, not as they were at some prior time. On that date the evidence demanded the finding that seven of the twelve heirs interested as distributes of the estate were in favor of Johnson as administrator, and under the rules announced in the cases cited above, the ordinary had no discretion other than to appoint Johnson. The power of the jury in the superior court was exactly the same as that of the ordinary, and the trial court erred in overruling the motion for a new trial on the general grounds.
Judgment reversed. Sutton, C. J., and Felton, J., concur.