An ordinary can not appoint a creditor of a deceased person administrator where a competent and qualified heir at law and next of kin of the deceased has made application for appointment.
DECIDED JUNE 21, 1941. Mrs. Bertha Merritt died intestate on February 3, 1940. On February 7, 1940, T. R. Sims applied to the ordinary of Butts County for permanent letters of administration on her estate. In his petition Sims alleged that he was a creditor of the deceased. *Page 191 James W. Sirmans, Mrs. Bessie Marbut, and Mrs. J. W. Horne filed their caveat to the appointment of Sims, on the ground that they were first cousins "and only heirs at law and nearest of kin of Mrs. Bertha Merritt;" that they selected in writing Mrs. J. W. Horne as permanent administratrix; that T. R. Sims was not related to Mrs. Merritt and was not an heir at law; and that they contested the claim of T. R. Sims as a bona fide creditor of the deceased. Attached to the caveat was the written selection of Mrs. J. W. Horne as such administratrix and the request that she be appointed, as alleged in the caveat. The ordinary thereupon issued letters of administration to T. R. Sims and Mrs. J. W. Horne as coadministrator and coadministratrix. The caveators appealed from this judgment to the superior court. On the trial in the superior court the evidence showed that the caveators were first cousins and next of kin of the deceased, and that there was no other next of kin living in Georgia. It appeared that Sims was no relation of the deceased. The caveators introduced the agreement of the heirs and next of kin that Mrs. J. W. Horne be appointed administratrix which read as follows: "We the heirs at law of Mrs. Bertha Merritt, deceased, hereby select Mrs. J. W. Horne to act as administrator of the estate of said deceased and request her appointment." This writing was signed by Mrs. J. W. Horne, Mrs. Bessie Marbut, and James W. Sirmans. The court directed a verdict sustaining the caveat. The jury sustained the caveat and found that Mrs. J. W. Horne was entitled to administer the estate and that letters of administration be issued accordingly. Judgment was entered on this verdict in which it was ordered that the ordinary issue permanent letters of administration to Mrs. James W. Horne.
Sims moved for a new trial on the general grounds and by an amendment added certain special grounds in which he alleged in substance that the court erred in directing a verdict because there were issues of fact which should have been submitted to the jury and which would have authorized a different verdict from that directed. The motion was overruled and he excepted. In the granting of letters of administration the ordinary shall follow the *Page 192 rules laid down in the Code § 113-1202. Under this section where there is no spouse surviving an intestate, "the next of kin, at the time of the death, according to the law declaring relationship and distribution," shall be entitled to administer the estate, and if there "be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed." Where the person selected by a majority of the next of kin is competent and qualifies as administrator, the ordinary has no discretion in the matter. The person so selected by a majority of the next of kin is entitled to the appointment as a matter of law. Pate v.Pate, 28 Ga. App. 798 (113 S.E. 50); Davis v. Davis,33 Ga. App. 628 (127 S.E. 779). There was no evidence that Mrs. J. W. Horne, the person selected by the caveators, who testified that they were the first cousins of the deceased and her next of kin and that they were the only first cousins of the deceased residing in Georgia, was not a person of sound mind or that she was laboring under any disability.
The Code, § 113-1202 (5), provides: "Where no application shall be made by the next of kin, a creditor may be appointed." It is argued by the plaintiff in error that the ordinary had a discretion in this case, which he exercised in the appointment of Sims, a creditor, as co-administrator with Mrs. Horne, who was a first cousin and the person selected by the other first cousins who resided in Georgia, in that it did not appear that the caveators were the only first cousins of the deceased, and it did not appear that the person selected by them was selected by a majority of the next of kin interested as distributees, for the reason that it only appeared that the caveators comprised all the next of kin residing in Georgia, and it did not appear that there were no other first cousins who resided outside of Georgia. The plaintiff in error therefore contends that it does not appear that the caveators are a majority of the next of kin of the deceased, and for this reason the ordinary had a discretion in the selection of the administrator. The Code, § 113-1202 (4), provides that if there is no selection by the next of kin equally near in degree "the ordinary may exercise his discretion in selecting the one best qualified for the office." The plaintiff in error contends that under this provision the ordinary could appoint a creditor of the deceased. The Code, § 113-1202, *Page 193 does not provide that where no selection is made by a majority of the next of kin the ordinary may appoint a creditor. It provides only that where no application shall be made by the next of kin a creditor may be appointed. Code, § 113-1202 (5). It is our opinion that, under the Code, where there are next of kin equally near in degree who apply for letters of administration a creditor may not be appointed, but the ordinary "may exercise his discretion in selecting the one best qualified for the office," meaning the next of kin best qualified for the office.
It follows that, regardless of whether the caveators constitute a majority of the next of kin equally near in degree to the deceased, where there is an application for appointment by any one of the next of kin the ordinary can not appoint a creditor.
The verdict directed, sustaining the caveat to the application of Sims for appointment, interposed by three of the next of kin equally near in degree, and ordering the ordinary to appoint one of the next of kin as administratrix of the estate, there being no question as to the fitness of such person, was demanded as a matter of law under the evidence.
The court properly overruled the motion for new trial.
Judgment affirmed. Sutton and Felton, JJ., concur.