
    RIGHTS OF NEXT OF KIN TO APPOINTMENT AS ADMINISTRATOR.
    Common Pleas Court of Pike County.
    Estate of Thomas N. Patterson, Deceased.
    Decided November 3, 1927.
    
      Decedent’s Estates — Next of Kin Have First Right of Appointment —Entitled to Reasonable Time to Apply for Letters — Appointment of a Stranger Revoked — Consent to such Appointment by Next of Kin not á Waiver of Rights.
    
    1. The next of kin of an intestate are entitled to a reasonable time within which to apply for letters of administration.
    2. An application made within thirty days after the death of the intestate by the next of kin, residing in another county, is made within a reasonable time.
    3. When without allowing such reasonable time the Probate Court appoints a stranger, the appointment is illegal; and on application of next of kin, the letters should be revoked.
    4. Should the next of kin file an application for the appointment of a stranger as administrator, and the court for any reason refuses' the appointment, this is no waiver of the rights of the next of kin to the appointment.
    On Appeal.
    
      J. D. Withgott, Levi B. Moore and G. W. Rittenour, for applicants.
    
      C. M. Caldwell and Earl D. Parker, for the administrator.
   Grimes, J.

(by assignment from Jackson county.)

This cause comes into this court on an appeal from the Probate Court on its refusal to set aside the appointment of Carl W. Penn, administrator of the estate of Thomas N. Patterson. The facts are these:

Thomas N. Patterson died on the 14th day of August, 1927, in Pike county, Ohio. On August 25, 1927, there was filed in the Probate Court the following application:

“Judge Accord—
We the heirs of T. N. Patterson request you appoint G. W. Rittenour administrator of said estate, in case no will is found.
Ella Hurst,
Virginia Noon Patterson, Per M. M. Patterson.
Helen Booth,
Chas. R. Patterson,
H. W. Patterson,
Mae Patterson.”

which application was refused by the court.

On August 31, 1927, Mae Patterson, one of the next of kin, filed her application asking to be appointed administratrix of the estate, which was refused, as the judge stated, on account of her sex.

On August 31, 1927, Charles R. Patterson one of the next of kin and a partner of the said Thomas N. Patterson, deceased, filed his application for the appointment as administrator of the estate, signed by all the next of kin of the said Thomas N. Patterson, deceased,, which was refused, all within seventeen days after the death of the said Thomas N. Patterson.

The probate judge in his testimony admitted that G. W. Rittenour and Charles H. Patterson were fully competent and possessed all of the qualifications to administer the estate, and that Mae Patterson was fully qualified, except as to her sex, to administer said estate.

Section 10617, General Code, provides:

Administration of the estate of an intestate shall be granted to persons hereinafter mentioned, residents of this state, in the following order:

1. The husband or widow of the deceased.

2. One or more of the next of kin of the deceased. The court may grant letters of administration and upon failure of the person or persons so entitled to administer the estate voluntarily, either to take or renounce, if residents within the county, they must be cited by the court for that purpose.

In the case of Todhunter v. Stewart, 39 O. S., page 181, all of the heirs of the deceased, residents of the county, presented a request to the probate judge, signed by all of the heirs of the deceased, for the appointment of a stranger as administrator of the estate, and the court appointed him administrator, and he qualified as such administrator. Within eighteen days, Alexander Stewart, son of the decedent and a nonresident of the county, filed his application, and his brothers, Andrew and Hugh, signed the same, asking that Todhunter’s appointment be revoked, and that he' be appointed administrator, which request was refused, and the court was reversed, and Alexander Stewart was appointed. "

There is no evidence whatever that Ella Patterson Hurst of Westerville, Franklin county, Ohio and Harry R. Patterson of Toledo, Ohio, had any notice that the court intended to appoint Carl W. Penn administrator, nor is there any evidence shown that they did not desire the appointment, but all of the evidence shows, conclusively, that all of the next of kin were opposed to the appointment of Mr. Penn, and within eighteen days after the death of Thomas N. Patterson all of the next of kin of the deceased joined in the application for the appointment of Charles R. Patterson, who was not only one of the next of kin but was a partner in the milling business with the deceased, and upon the failure of the next of kin to ask for appointment, he, within thirty days, would have been entitled to the appointment in preference, to -a stranger. It is claimed he waived the appointment by saying he would rather not take the appointment, but there is no evidence that he refused the appointment, nor that he consented to the appointment of Mr. Penn.

As to the refusal of the appointment of Mae Patterson, who was a niece and one of the next of kin of the deceased, and of a surviving partner in a part of the-business of the deceased — we find that in the case of a sister of testator objections to her appointment on the ground of her lack of business experience or hostility to other beneficiaries or any other reason not amounting to a mental or physical incapacity, could not be considered. In re Estate of Sells, 5 N. P. (N. S.), 629.

The next of kin are entitled to'a reasonable time to apply- . *

As to the challenge by the heirs of the appointment of Mr. Penn— '.....

“A motion to revoke the appointment under the former section is not a collateral but direct attack upon the appointment, when such motion is filed under favor of that section and in the same court wherein letters of administration were granted.” 103 O. S., 559.

The decision in regard to the Todhunter v. Stewart case, 39 O. S., 181, has never been overruled, either directly or impliedly, nor modified nor doubted, nor disapproved, nor abrogated by legislative enactment. Surely the right of the heirs to administer this estate is a specific legal right given under Section 10657, General Code.

It is the intention of the section of the Code to intrust the administration to those who are most interested in the estate, if competent, suitable and willing to undertake the trust. It is insisted, however, that thé probate judge has no jurisdiction to appoint as administrator any person who is not a resident of the county, and that this is implied by the provisions of the section of the General Code requiring citation or notice, only when the next of kin are residents within the county. This is not the proper construction of that section. It gives to the persons mentioned in the order prescribed the absolute right to the letters of administration, subject only to the condition that they are competent, suitable for the discharge of the trust, and do not neglect, without sufficient cause, to take adminr istration.

The Probate Court was not corrupt in this case, but had a misapprehension of the law, and when Miss Mae Patterson filed her application he should have issued a citation to all of the heirs, residents of the county, and at the time, set for hearing, passed upon her qualification.

The appointment of Carl W. Penn is revoked, and this case is remanded to the Probate Court for further proceedings according to law.

Decree for applicants.  