Cole v. Dial

Wheeler, J. It is insisted for the appellant, that he could not waive his right, as the next of bin, to the grant of administration, in favor of the appellee, because, it is supposed, the latter had not any right to administer. [102] “Waiver is the relinquishment or refusal to accept a right.” • “It is,” it is said, “a rule of the civil law, consonant with “ reason, that any one may renounce or waive that which has “ been established in his favor.” The same rule obtains at the Common Law. “ In practice, it is required of every one “ to take advantage of his rights at a proper time, and, neg- “ lecting to do so will be considered as a waiver.” (Bouvier Law Die. Title “ Waives.”) In the grant of administration, the law gives the preference to the next of kin, and certain other enumerated persons, but that is a personal privilege, which the party, if he think proper, may decline to exercise. The application of the appellee, in the absence of any one. having a legal preference, gave him the right to administer. It appears that his application was pending before 'the Court, when the appellant applied for the grant as next of kin. When the latter withdrew his application, we must regard him as having waived his superior right, and as tacitly consenting to the appointment of the former: and we think he could not afterwards have the appointment revoked, without showing some cause for annulling the grant, other than his preferred right as next of kin, which he had thus waived. It was, we think, the intention of the statute to which reference has been made as supporting the right of the appellant, (Dig. Art. 1123,) to enable those whose right is preferred, to demand the grant of administration, where from any cause they may have been prevented from asserting their right in the first instance. But we cannot suppose that the law intended that an administrator, legally appointed and qualified, and who is faithfully discharging the duties of the trust, should be removed at the mere instance and pleasure of one who in the first instance virtually declined to accept it, and tacitly consented to the appointment of the former; and whose action, in that regard, gave occasion, or imposed the immediate necessity of the appointment. We think the withdrawal of the plaintiff’s application was, under the circumstances, a virtual disclaimer and waiver [103] of his superior or preferred right to the grant of administration ; and that he could not afterwards, and especially after so long an acquiesence unexplained, have the appointment annulled, and that of himself substituted, without showing some other and sufficient cause for revoking the grant. We are of opinion, therefore, that the judgment be affirmed. Judgment affirmed.