
    In re ROUSE’S ESTATE. BURKER et al. v. ROUSE.
    No. 8504
    Opinion Filed Nov. 26, 1918.
    Rehearing Denied Jan. 7, 1919.
    (176 Pac. 954.)
    (Syllabus.)
    Executors and Administrators — Right To Appointment — Son—Competency.
    0. died intestate leaving as next of kin two sons and two daughters. K., one of the daughters, applied for letters of administration on the estate of her deceased mother. Shortly thereafter, G., one of the sons, made application tor leuers ana sought to contest the right of K. to administer on the estate. At the hearing all four of the children were present, and K. and her brother D. filed objections to the appointment of G., on the grounds that there was at the time pending against him in the district court an action brought by the special administrator of the estate to recover on a promissory note owing by G. and which action he was defending, also the further charge involving G. in questionable business transactions with the estate ; because of all of which it was charged, he was an unsuitable person to be named as administrator. The pendency of .the action brought against G. and his course in connection therewith were admitted at the hearing. The county court appointed G., and K. and D. appealed by serving a joint notice of appeal alleging error of the court in not appointing one or the other as legal representative of the estate, and by giving a joint appeal bond. On hearing before the district court the judgment of the county court was affirmed. Held, that the duty of the trial court being, as defined in section 6253, Rev. L. to ‘‘order the issuing of letters of administration to the parties best entitled thereto.” it was error to appoint G., because of his hostile attitude toward the estate, administrator thereof, instead of D. against whom no charge either of incompeteney or unsuitableness was urged.
    Error from District Court, Lqgan County; A. H. Huston, Judge.
    Petition by Katie E. Burlier to be appointed administratrix of Catherine Rouse, deceased, and petition by George Rouse to be appointed administrator, contesting the. former application, with objection by Katie E. Burker and David Rouse. From an order appointing George Rouse administrator, Katie E. Burker and David Rouse bring error.
    Reversed, and cause remanded, with directions.
    O. R. Fegan and T. C. Whitley, for plaintiffs in error.
    Burford & Adams, for defendant in error.
   SHARP, C. J.

On March 6, 1916, Katie E. Burker, a resident of Logan county, filed in the county court of that county a petition in which she asked to be appointed adminis-tratrix of the estate of her mother, Catherine Rouse, deceased. The petition was set for hearing on the 20th day of March following. On March 10, 1916, George Rouse, her brother, filed in the county court of Logan county a petition in which he asked to be appointed administrator of the estate of his deceased mother, and in which he sought to contest' the application of his sister, Katie, on the ground of a prior statutory right to administration. His application and contest were also set for hearing on March 20th. On the latter day the applicant Katie and her brother David filed objections in the county court to the appointment of George, on the ground that there was at the time pending in the district court of Logan county an action against him on behalf of the estate to recover on a promissory note. Other charges, arising out of alleged dishonest business transactions were urged against his appointment. which charges were signed and sworn to by both Katie and David. On March 20th the three parties named, together with their sister Julia appeared, and the court after hearing the evidence found that George was a fit person and best entitled to letters of administration and was prior in right under the statute to his sister Katie to act as administrator. From the order appointing George, Katie and David gave notice of appeal, in which it is recited that they had applied for the appointment as administra-trix and administrator, respectively, and that the court had refused to appoint either of them; hence their appeal. The bond given on appeal was the joint bond of Katie and David. At the trial in the district court, it was admitted that suit had been brought by L. N. Baker, guardian of Catherine Rouse, against George Rouse, to recover on a promissory note in the sum of $1,000, and that he was contesting his liability thereon, and that the action was pending on February 20, 1916, the date of the death of said Catherine. After1 the latter’s death, the action was revived in the name of Louise N. Baker, the special administrator of her estate.

- Did the court err in appointing George Rouse administrator, in view of his antagonistic attitude toward the estate, and the fact that he was at the time contesting a recovery on a promissory note in an action then pending against him in the district court? If his appointment is to stand, the anomaly will follow of his being both plaintiff and defendant in the pending action, as section 6287 provides that, when letters tes-amentary or of administration on the estate of the decedent have been granted, the powers of the special administrator cease, and he must forthwith deliver to the executor or administrator all the property and effects of the decedent in his hands and the executor or administrator so appointed may prosecute to final judgment any suit commenced by the special administrator. Under the statute, letters of administration must be granted to some one of the persons named in section 6245 in the order therein named; the seventh class being “the next of kin entitled Oto share in the distribution of 'he estate.” Under section 6246, of several persons claiming and equally entitled to administer, males must be preferred to females. So that, if the only question involved was the superiority of the right of Katie .and George and the protestant David equally en-tate, George would be preferred.

However, in the instant case it appears that there were two brothers, the applicant George and the protestant David equally entitled to administration, aside from any question of incompeteney or disqualification of either. No charges are made that David was not fitted to act as administrator. Construing the statute strictly, George was not incompetent, if we are to look to section 6249 defining incompeteney alone. Where, however, there is included in the next of kin two brothers equally interested in the estate, one of whose interest is antagonistic to, and who is involved in litigation with, the estate, the court should issue letters to the parties best entitled thereto, regardless of the fact that the other brother did not file a formal application to be appointed administrator. Such is the mandate of the statute which provides that — ■

“The court must hear the allegations and proofs of the parties, and order the issuing of letters of administration to the party best entitled thereto.” Section 6253, Rev. Laws 1910.

At no time did David file' a waiver of ,his fight to appointment as provided for in- section 6251,' nor is it made to appear that he' was either. incompetent or unsuitable; and we may fairly assume for the time that ha was neither, hence, such being the case, the. court, in. the exercise of a reasonable discretion, should have issued letters of administration to him. True it, is the statute requires that letters of administration must be granted to an applicant, though it appear there - are other persons having better rights to the administration, “which such persons fail to 'appear and claim the issuing of letters to themselves.” But David did not fail to appear; indeed, he appeared-from' the beginning and protested against his brother’s appointment, and in the notice of appeal urged as a ground thereof that the court had failed to appoint either him or his sister ás the legal representative'of the estate.

■While there are authorities to the effect that the court having jurisdiction oyer probate matters is without discretion to decline to appoint as administrator one otherwise entitled thereto on account of -such person occupying a position hostile to the interests of the estate we do not understand that the cases go so far as to hold that between two heirs equally entitled to letters of administration, the court having the appointing power must confine the exercise of its jurisdiction to those making formal application, where others having an equal right are before the court and contest the right of the applicant to appointment on the ground that he is unsuitable by reason of pending litigation and hostility toward the estate. If the contest were alone between Katie and her brother George, it may be that his prior right to letters of administration would require an affirmance of the order appointing him administrator. Keeping in mind, however, the fact that there was before the court another brother, equally entitled to administration, and against whom no claim ■of adverse interest was made, the court should have appointed him in preference to the applicant, even though the former made no formal application for appointment. These views violate none of the provisions of the statute, and will best subserve the interests of those entitled to share in the distribution of the estate, and will, in addition, remove any obstacle in the way of carrying on the pending litigation.

The judgment of the trial court is reversed, and the cause remanded,. with instructions to proceed further in accordance vith the views herein expressed.

All the Justices concur.  