
    Richmond.
    Smith v. Lurty and Lurty v. Smith.
    November 21, 1907.
    Absent, Cardwell, J.
    1. Administration—Bight of Widow to Qualify—Refusal—Designation of Another—Code, Seo. 2639.—A widow, though otherwise entitled to the preferable right to qualify as administratrix with the will' annexed of her husband, is properly refused the right to qualify where it appears that she is hostile to, and not on speaking terms with, the principal devisee and legatee under the will, is litigating with the curator of her husband’s estate, and is asserting title to property which the husband attempted to dispose of by his will; nor, having been refused the right to qualify, can she designate the person to be appointed. Section 2639 of the Code does not confer this right upon her under such circumstances.
    2. Administration—Right, to Qualify—Distributees—Legatees—Code, Sections 2637 and 2639.—When the executor of a will refuses to’ qualify, the right of administration is conferred upon the decedent’s distributees by sections 2637 and 2639 of the Code, and they are allowed to waive it in favor of any other person to be designated by them; and, when the distributees have designated such a person, a legatee and devisee who is not a distributee has no right to qualify or to designate who shall. The word “distributees,” as used in section 2639, means those who would be entitled under the! statute of distribution to the personal estate of the decedent if he had died intestate, and does not embrace legatees and devisees. But distributees who recognize the preferable right of thei widow to qualify, if the court deems her a proper person, do not thereby waive their right to qualify, or to designate who shall, in the event the court denies the application of the widow to qualify.
    
      Error to a judgment of the Circuit Court of Rockingham county, appointing an administrator with the will annexed of Warren S. Lurty, deceased.
    
      Affirmed.
    
    
      E. B. Crawford and D. O. Deckert, for Susie Smith.
    
      A. B. Guigon and Conrad & Conrad, for Annie S. Lurty.
    
      Sipe & Harris, for next of kin of W. S. Lurty, deceased.
   Buchanan, J.,

delivered the opinion of the court.

Warren S. Lurty died leaving a paper purporting to be his last will and testament, by which he disposed of a part of his real and personal estate. Pending litigation as to whether or not that paper was his last will, a curator was agreed upon by the parties in interest and appointed by the court. The result of the litigation was the establishment of the paper as the decedent’s last will. The executor named therein qualified, but before acting was permitted to resign. Thereupon, the widow moved the court to grant her letters of administration with the "will annexed, and in case it denied that motion then in the alternative that letters of administration be granted to her nominee, whom she was ready to announce to the court.

That motion was opposed by Susie Smith, a devisee and legatee under the will, who moved the court to grant administration to U. W. Bertram, who was in charge of the estate as curator. The brothers and sister of the testator (he having died leaving no descendants), without opposing the claim of the widow to a prior or .preferred right to have administration granted herself, moved the court to grant letters of administration to the husband of the testator’s sister, in case the application of the widow for grant of administration to herself should, be denied.

Upon the hearing of these motions, which were heard together, the court overruled the motions of the widow and Susie Smith, respectively, sustained the motion of the brothers and sister of the testator, and appointed the husband of the latter administrator with the will annexed. To that order the widow and Miss Smith each obtained a writ of error and supersedeas.

By section 2637 of the Code of 1904 it is provided, that “1± there be no executor appointed by the will, or if all the executors therein named refuse the executorship, or fail when requested to give such bond, which shall amount to such refusal, the said court or clerk may grant administration, with the will annexed, to the person who would have been entitled to administration if there had been no will, upon his taking such oath and giving such bond.”

By section 2639 it is provided, that where a person dies intestate, “administration shall be granted to the distributees who apply therefor, preferring first the husband or wife, and then such of the others entitled to distribution as the court or clerk shall see fit. But any of the said distributees may, at any time waive the right to qualify in favor of any other person to be designated by them. If no distributees apply for administration within thirty days from the death of the intestate, the court or clerk may grant administration to one or more of the creditors, or to any other person.”

Conceding that the widow, under these sections of the code, if she was a suitable person, had the preferable right to qualify as administrator of her husband with the will annexed, the court did not err in refusing to allow her to do so upon' the facts disclosed by the record. She was very hostile to and not upon speaking terms with Miss Smith, the principal devisee and legatee under the will. She was litigating with the curator, both as plaintiff and defendant, and was asserting title to> property which her husband had attempted to dispose of by his will. Under these circumstances, the circuit court properly declined to appoint her as administratrix. See Bridgman v. Bridgman, 30 W. Va. 212, 3 S. E. 580; 18 Cyc. 93, and eases-cited.

Meither do we think the circuit court erred in refusing to appoint as administrator the person she proposed to name in the event the court refused to appoint her. The statute provides that any distributee may waive his right to qualify in favor of any other person to be designated by such distributee; hut we do not understand it to mean that, where a distributee has insisted upon his right to qualify and the court has held, upon the facts disclosed in the proceeding, that he has no such right, he can then designate some other person to be appointed to a position which he himself has been adjudged not entitled to.

M either do we think the court erred in refusing to sustain the-motion of Miss Smith to appoint Bertram, the curator, as administrator. Section 2637 of the code provides that, where the executor refuses the executorship-, the court or clerk may grant administration with the will annexed to the person who-would have been entitled to administration if there had been no will; and section 2639 provides, where there is no will, that; administration shall he granted to the distributees, and that any of the distributees may at any time waive their right to qualify in favor of any other person to he designated by them. Miss Smith, while a devisee and legatee under the will, was not a distributee, for the word “distributees,” as used in the sections quoted, clearly means those who would be entitled under the statute of distribution to the personal estate of the decedent if he had died intestate. Mot being a distributee, she had no preferable claim to he appointed administrator, nor preferable right to designate another to be so appointed under the statute.

The brothers and sister of the decedent, by their recognition of the prior right of the widow to qualify if the court thought. she was a suitable person under the facts of the case, neither waived their own right, respectively, to qualify, nor their right to designate another person in the event the court declined to grant letters of administration to the widow. They were interested in the decedent’s estate, were clearly within the meaning of the statute, and the court did not err in granting letters of administration to the person designated by them, under the facts of the case.

Its order must be affirmed.

Affirmed.  