
    Todhunter v. Stewart.
    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 eighteen days after the death of the intestate, by next of kin, residing in another county, is made within a reasonable time.
    3. When, without allowing such reasonable time, the probate court appointed a stranger as administrator, the appointment is illegal, and, on application of the next of kin, the letters of administration should be revoked.
    Motion for leave to file a petition in error to the district court of Butler county.
    Jennette Stewart, a resident of Butler county, Ohio, died intestate, on the first day of January, 1883, leaving three sons, Hugh Stewart, Andrew Stewart, and Alexander Stewart, and also four grandchildren, to wit, Kate Skillman, Isabel Barnett, Jennie Heffner, and John Blair, children of a deceased daughter, surviving her, all of whom were of full age, and all residents of Butler county except Andrew Stewart and Alexander Stewart who resided in the county of Hamilton. Mrs. Stewart left personal property to the amount of $3,000. On January 5,1883, William II. Todhunter filed in the probate court of Butler county a request for his appointment as administrator of the estate of Jennette Stewart, signed by Hugh Stewart, Kate Skillman, Isabel Barnett, and Jennie Heffner, and also his own application, in the usual form, for such appointment, to which John Blair also afterward filed his written consent. The probate court then issued to Todhunter letters of administration in accordance with his application, and he gave the bond required by law.
    Andrew Stewart and Alexander Stewart had no knowledge that any application for the appointment of an administrator on their mother’s estate had been made, or was intended, until after Todhunter’s appointment. On January 18, 1883, Alexander Stewart filed in the probate court of Butler county his motion to set aside the appointment of Todhunter and an application for his own appointment as administrator, and presented a request for his appointment as such administrator signed by his brothers Andrew and Hugh.
    The motion, and application, were overruled by the probate court, and judgment was rendered against Alexander Stowart for costs, which proceedings and judgment were, on error, affirmed by, the court of common pleas. The district court reversed the judgment of the court of common pleas, and the judgment of the probate court, and Todhunter now usks leave to file a petition in error to reverse the judgment of the district court. '
    
      W. J. Gilmore, for the motion,
    urged that the appointment of an administrator is limited by the jurisdiction of the probate court which is restricted to the county,.Rev. Stat. §§ 5994, 6005. All the next of kin had renounced administration except Alexander and Andrew Stewart, who were non-residents and not entitled to notice. How could the court then have refused to appoint Todhunter? and having appointed him it could not remove him, for it had no power to do so. The powers of the probate court are only such as are expressly granted or necessarily implied, and no power to remove in such case as this is either expressly or impliedly given. Rev. Stat. § 6017.
    
      L. D. Doty, also for the motion.
    
      T. 8. Crawford and James li. MilliJdn, contra,
    relied on section 6005 Revised Statutes, and claimed that under that section the defendant in error had a reasonable time within which to come in and make application for letters of administration.
   Upson, J.

The statute provides that “administration of the estate of an intestate shall be granted to some one or more of the persons hereinafter mentioned; and they shall ho respectively entitled thereto in the following order, to wit:

“ First. His widow, or next of kin, or both, as the court may think fit, and if they do not voluntarily either take or renounce the administration, they shall, if resident within the county, be cited by the court, or notified by a party in interest for that purpose.
“ Second. If the persons so entitled to administration are incompetent or evidently unsuitable for the discharge of the trust, or if they neglect, without any sufficient cause, to take administration of his estate, the court shall commit it to one or more of the principal creditors, if there be any competent and willing to undertake the trust.
“ Third. If there be no such creditor, and the court is satisfied that the estate exceeds the value of one hundred dollars, the court shall commit administration to such other person as it shall think fit.”

It is the policy of this statute 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 the probate court has no jurisdiction to appoint, as administrator, any person who is not a resident of the county, and that this is implied by the provision of the statute requiring citation, or notice, only when, the next of kin are “resident within the county.” This is not the proper construction of the statute. It 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. The construction contended for is not authorized by the language, or policy of the law, or by the practice of the courts.

All of the next of kin residing in Bntler county renounced the administration in favor of Todhunter, but this gave him no right to the appointment in preference to Alexander Stewart and Andrew Stewart, and the latter having also renounced the administration, we need only now determine whether the right, thereto of Alexander Stewart has in any manner been waived or lost.

?_t is admitted that he is a suitable and competent person. He has not renounced the administration, and the only question to be decided is whether, without sufficient cause, he lias neglected to take it.

We hold that in order to protect his right to letters of administration, it was not necessary for him to apply therefor, within five days after his mother’s death. No time being prescribed by law within which the person entitled to administration must apply, the application may be made within a reasonable time, depending upon the circumstances of each case. In this case Alexander Stewart resided in Hamilton county, and filed his application within eighteen days after the death of the intestate, which we think was within a reasonable time.

The appointment of Todhunter having been improperly made, should have been set aside, and the letters of administration issued to him should have been revoked. That the probate court has power to revoke letters of administration granted to another person than the next of kin, in violation of the legal rights of such next of kin, is .well settled. Schouler on Exec, and Admin. § 153, and cases there cited.

Similar statutory provisions have in numerous cases received the same construction which, in this case, we have given to our own statute : Cobb v. Newcomb, 19 Pick. 336 ; Miller v. Washington, 3 Hagg. Eccles. 277; 3 Redf. on Wills, 87; McClellan's Appeal, 16 Penn. St. 110 ; Schouler on Exec, and Admin, ch. 3, § 90.

We are of opinion that there was no error in the judgment of the district court, and that leave to file a petition' in error should be refused.

Motion ovemded.  