Summary
holding that a guardian of a minor spouse was not eligible as such for appointment as administrator under an Ohio statute
Summary of this case from Courtney v. LawsonOpinion
No. 30507
Decided May 16, 1946.
Executors and administrators — Priority in appointment — section 10509-3, General Code — Surviving spouse entitled to letters of administration, when — Guardian of surviving spouse not eligible for appointment, when — Next of kin entitled to appointment, when — Such priority not dependent an interest in assets of estate.
1. Under the provisions of Section 10509-3, General Code, the resident surviving spouse is entitled to priority in the appointment as administrator of the estate of an intestate unless such spouse is incompetent or is for any reason unsuitable for the discharge of the trust or has without sufficient cause neglected to apply within a reasonable time for the administration of the estate.
2. In the event of such incompetency, unsuitability or neglect, the spouse's right to priority is lost.
3. Where such incompetency exists by reason of minority, a guardian of the spouse is not eligible, as such, for appointment as administrator.
4. The provisions of Section 10509-3, General Code, are mandatory, and when a surviving spouse is a minor, one of the next of kin of the deceased, resident of the county, is entitled to appointment as administrator in the absence of incompetency, unsuitability or neglect.
5. The right of priority of such next of kin is not dependent upon the extent of his interest in the assets of the estate.
APPEAL from the Court of Appeals of Cuyahoga county.
Theodore P. Golembiewski died intestate December 31, 1944.
He was survived by his parents and his widow, a minor seventeen years of age.
Three applications for letters of administration were filed — the first by the father, the second by the widow, and the third by the widow's guardian who also is her father. Two of these applications indicate that the only asset of the estate is a claim for wrongful death. The third application includes also a claim for personal injuries to the decedent.
The Court of Probate denied the applications of the decedent's father and widow and granted that of the widow's guardian.
Upon an appeal by the decedent's father to the Court of Appeals on questions of law the order of the Court of Probate was reversed and the cause was remanded. The journal entry reads in part as follows:
"This cause came on to be heard on appeal on questions of law from the Probate Court of Cuyahoga county, the pleadings, bill of exceptions, briefs and arguments of counsel and the court being fully advised in the premises finds that the trial court committed error prejudicial to the appellant in that in appointing an administrator for the estate of Theodore P. Golembiewski such court ignored the mandatory provisions of Section 10509-3, General Code. That the applicant for administrator, Felix F. Golembiewski, is of the next of kin of the decedent and is entitled to appointment as such administrator of such estate, if otherwise suitable and competent.
"It is therefore ordered decreed and adjudged that the order of the Probate Court of Cuyahoga county appointing Joseph Kotecki, administrator in such estate, such order of appointment containing no finding of incompetency or unsuitability of Felix F. Golembiewski, be reversed, vacated and held for naught and that this case be remanded to the Probate Court of Cuyahoga county with instructions to determine the competency and suitability of said Felix F. Golembiewski and if he be found qualified competent and suitable to appoint such Felix F. Golembiewski administrator of the estate of Theodore P. Golembiewski."
The case is in this court for review upon the allowance of the guardian's motion to certify the record.
Mr. Austin T. Klein, for appellant Joseph F. Kotecki.
Mr. Ben G. Ruby, for appellee Felix F. Golembiewski.
Section 10509-3, General Code, reads in part as follows:
"Administration of the estate of an intestate shall be granted to persons hereinafter mentioned, in the following order:
"1. To the surviving spouse of the deceased, if resident of the state.
"2. To one of the next of kin of the deceased, resident of the county.
"3. To one of the next of kin of the deceased, resident of the state. * * *
"If there are no persons so entitled to administration, or if they are incompetent, or for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right to priority shall be lost, and the court shall commit the administration to some suitable person or persons, resident of the county, who may or may not be a creditor."
The decedent's father concedes that under the provisions of this statute the surviving spouse would be entitled to prior consideration if she were not a minor. However, he contends that the Court of Probate was in error in holding the spouse's guardian entitled to appointment in her stead. Reliance is placed upon the statutory language that if persons so entitled to administration "are incompetent * * * their right to priority shall be lost."
It is not urged that the surviving spouse herself is eligible for appointment as administratrix. She is under the legal disability of being a minor. Section 10509-11, General Code, provides that a minor may not serve in the capacity of executor, but the statute is silent as to serving as an administrator. However, it is the general rule that a minor is not competent to be appointed or serve as an administrator. 33 Corpus Juris Secundum, 949, Section 46; 21 American Jurisprudence, 421, Section 84. As to the matter of infancy a distinction is sometimes drawn between executors and administrators, and usually the rule is stricter as to the latter. 11 Ruling Case Law, 45, Section 35.
In some jurisdictions a guardian of a minor may by virtue of a statute or the common law be appointed administrator in place of the minor. However, in this state the matter is controlled by Section 10509-3, General Code, supra, which clearly provides that where incompetency exists such person's right to priority is lost. But the incompetency of one individual does not destroy the right of priority of other classes enumerated in the statute. The succeeding provision requires that next in priority after the surviving spouse shall be "one of the next of kin of the deceased, resident of the county." It is not denied that the decedent's father comes within the classification of "next of kin"; but it is contended that under the facts in this case the interest of the surviving spouse in the assets of the estate is greater than that of the decedent's father and that therefore the latter is entitled to no consideration. The applicable rule in this state is properly indicated in 18 Ohio Jurisprudence, 98, Section 50, as follows:
"The statute of Ohio regarding appointment is apparently mandatory and unequivocal. Whether the next of kin may have any actual interest under a will is evidently not to be considered."
And in the case of Todhunter v. Stewart, 39 Ohio St. 181, Judge Upson discussed Section 6005, Revised Statutes, which was similar to the present Section 10509-3, General Code. The following comment appears in his opinion on page 183:
"It [the statute] gives to the persons mentioned, in the order prescribed, the absolute right to letters of administration, subject only to the conditions that they are competent, suitable for the discharge of the trust, and do not neglect, without sufficient cause, to take administration."
Hence, the Court of Probate was in error in appointing the surviving spouse's guardian as administrator and in refusing to consider the decedent's father. The minor surviving spouse and her guardian were ineligible, and the decedent's father as a next of kin was entitled to consideration irrespective of the extent of his interest in the assets of the estate. The Court of Appeals correctly reversed the order of the Court of Probate; and the cause was properly remanded with instructions to determine the competency and suitability of the decedent's father and to appoint him administrator if found qualified.
The judgment of the Court of Appeals must be affirmed.
Judgment affirmed.
BELL, WILLIAMS, TURNER, MATTHIAS and HART, JJ., concur.