Tompkins v. Poff

Whittle, J., delivered the opinion of the court. The object of this writ of error is to obtain a reversal of the order of the Circuit Court of Montgomery county vacating the office of plaintiff in error, M. H. Tompkins, as administrator with the will annexed of J. W. Poff, deceased, and appointing Lewis Poff administrator in his stead. The material facts are these: On June 7, 1915, J. W. Poff died testate as to .part of his estate and intestate as to the residue, but he named no executor of the will. Three days after his death the will was admitted to probate by the clerk of the circuit court of the county, who, at the same time, on motion of John H. Poff, Roy A. Poff, James C. Poff and Christie BL Poff, four of the sons of the deceased, appointed plaintiff in error administrator with the will annexed. The clerk also designated appraisers who appraised the personal estate of J. W. Poff, which was taken charge of by the administrator. — 164 — Decedent was survived by his widow, Nancy Poff, and the following children and grandchildren, viz: the four sons, mentioned above and William H. Poff, A. E. Poff and Lewis. Poff, sons, and Pauline Nolly and Ella P. Pritchitt, daughters; also three infant children of Nora Dixon, a deceased daughter. Shortly after the qualification of the administrator the three last named sons gave notice that on June 19, 1915, they would proceed by motion before the clerk of' the court to have the authority of the administrator revoked, and Lewis Poff appointed administrator in his stead. The administrator attended at the time and place appointed, but none of the parties appeared. On that occasion the widow and daughters of decedent addressed written requests to the clerk not to revoke the authority of the-administrator as they desired him to administer on the-, estate. On June 28, 1915, William H. Poff served notice on the administrator that on July 1,' 1915, he would move the-judge of the circuit court of the county to revoke the administrator’s authority and grant letters of administration to him; but the judge, after hearing the evidence, overruled that motion. Thereupon William EL Poff, A. E. Poff and Lewis Poff appeared before the clerk and noted an appeal from the order appointing plaintiff in error administrator, but failed to prosecute that appeal. And finally, on August 7, 1915, Lewis Poff again applied to have himself' appointed administrator. From an order of the clerk denying the application he appealed'to the circuit court, which entered the order under review vacating the appointment, of the plaintiff in error and granting letters of administration with the will annexed to Lewis Poff. The case virtually depends upon the construction of sections 2637, 2639 and 2640 of the Code of 1904. It is provided by section 2637 that, “If there be no executor appointed by the will, or if all the executors therein — 165 — named refuse the executorship, or fail when requested to give such bond, which shall amount to such refusal, the said court or clerk may grant administration with the will annexed, to the person, who would have been entitled to administration, if there had been no will, upon his taking such oath and giving such bond.” Section 2639 provides that where a person dies intestate, “Administration shall be granted to the distributees who apply therefor, preferring first the husband or wife, and then such of the others entitled to distribution as the court or clerk shall see fit. But any of the said distributees may at any time waive their right to qualify in favor of any other person to be designated by them. If no distributees apply for administration within thirty days from the death of the intestate, the court or clerk may grant administration to one or more of the creditors, or to any other person.” It is contended by the defendant in error that because the four sons of J. W. Poff, on whose motion plaintiff in error was appointed administrator with the will annexed, were devisees under testator’s will they were not entitled to administration themselves, and, therefore, could not designate any other person to be appointed .in their stead. This contention is in conflict with section 2637 of the Code, as construed by this court in Smith v. Lurty, 107 Va. 548, 59 S. E. 403. In that case the executor named in the will was permitted to resign; and, thereupon, the widow moved the court to grant her letters of administration with the will annexed, and, alternately, should that request be denied, to grant administration to her nominee. The motion was opposed by Susie Smith, a devisee and legatee under the will (but who would not have been a distributee in case of intestacy) who moved the court to grant administration to the curator of the estate. The next of kin (the brothers and sister of testator, who died leaving no de — 166 — scendants) did not oppose the appointment of the widow, but asked, in the event her motion was denied, that administration be granted to the husband of testator’s sister. These motions were heard together, and “the court overruled the motions of the widow and Susie Smith, respectively, sustained the motion of the brothers and sister of the testator, and appointed the husband of the latter administrator with the will annexed1.” Buchanan, J.; observes : “By section 2639 it is provided that when a person dies intestate, ‘administration shall be granted to the distributees who apply therefor, preferring first the husband and wife, and then such of the others entitled to distribution as the court or clerk shall see fit. But any of said distributees may, at any time, waive the right to qualify in favor of any other person to be designated by them. If no distributees apply for administration within thirty days from the death of the intestate, the court or clerk may grant administration to one or more of the creditors, or to any other person.’ ” It was conceded in that case that the widow, if a suitable person, would have had the preferable right to qualify as administrator of her husband with the will annexed. But the action of the trial court in refusing her administration was upheld on the ground of her hostility to Miss Smith, the principal devisee and legatee, and also because both as plaintiff and defendant she was engaged in litigation with the curator, asserting title to property which her husband had attempted to dispose of by his will. The court was furthermore of opinion, for the reasons stated, that having been refused the right to qualify herself, she could not designate a substitute to be appointed. The. court, moreover, agreed with the circuit court in its refusal to permit Miss Smith to designate an appointee, because though a devisee and legatee under the will, she was a stranger in blood, to the testator, and, therefore, would not have been a distributee in case of intestacy. For, says — 167 — the court, “the word ‘distributees,’ as used in the sections quoted, clearly means those who would be entitled under the statute of distribution to the personal estate of the decedent if he had died intestate. Not being a distributee, she had no preferable claim to be appointed administrator, nor preferable right to designate another to be so appointed under the statute.” Conversely, it is plain that the four sons of J. W. Poff, on whose motion appellant was appointed administrator, although devisees and legatees under the will, would have been distributees had testator died intestate, and by the terms of the statute were entitled to apply for administration themselves, and consequently might, “at any time waive their right to qualify in favor of any other person to be designated by them.” Reading sections 2637 and 2639 together, it is clear, we think, that a distributee who applies for administration and is appointed and qualifies can only be removed for cause; and that the same principle applies to an appointee in whose favor a distributee waives his right to qualify. ' By substitution such person is clothed with all the rights of the distributee and occupies the same plane. 'When, therefore, the appointment, either of a distributee or of some other person designated by him, has been made and the appointee has qualified, the power of the court or clerk is exhausted, and no further appointment .can be made until a vacancy occurs in the office in some way recognized by law. The suggestion that such construction unduly discriminates between distributees of the same class is without merit. The statute contemplates a possible preference in favor of suitable distributees in the order in which they apply for appointment; and to the diligent in this instance, as in others, the maxim, "Qui prior est tempore, prior est jure,” applies. — 168 — Nor do we consider that the interpretation placed on section 2639 is in any way affected by section 2640.. As we have seen, the concluding sentence of section 2639 reads: '“If no distributees apply for administration within thirty days from the death of the intestate, the court or clerk may grant administration to one or more • of the creditors, or to any other person.” By act approved December 10, 1903 (Acts 1902-3-4, pp. 593-4), the following words were incorporated in section 2639, “But any of the said distribuítees may at any time waive their right to qualify in favor of any other person to be designated by them.” It will be perceived that, after the amendment, section 2639 dealt with two classes of persons who were eligible to appointment as administrators: (1) To distributees who applied therefor or to any other person in whose favor any of the said distributees at any time waived their right to qualify; and (2) to one or more of the creditors or any other person after the expiration. of thirty days from the death of the intestate. Appellees rely on the following pro-vision in section 2640 (which, in that respect, has remained without change since the Code of 1849) to maintain their right to the administration, “* * * if, after administration is granted to a creditor or other person than a distributee, any distributee who shall not have before refused shall apply for administration, there may be a grant * * * of administration, after reasonable notice to such creditor or other person, in like manner as if the former grant had not been made; and the said former grant shall thereupon cease.” The history of the legislation as well as the language just quoted show that it was intended to apply only to persons included in class “(2)” and not to those enumerated in class “(1)” of section 2639, as amended. There could be no doubt of the correctness of this interpretation of section 2640 prior to the amendment of December 10, 1903, enlarging the class of eligibles td appointment within — 169 — thirty days from the death of the intestate, because there was no other class to which it could apply. And it would be unreasonable to presume, without some change of language, a legislative purpose to emasculate the important amendment carried into section 2639. The natural and ordinary meaning of the words, “waiving a right in favor of another,” imports an investure of such other with the right waived ; and it is not to be supposed that the legislature would confer a right on a class, introduced in the law for the first time, by one section merely to deprive them of that right by the following section. In the instant case, four out of seven of testator’s sons within thirty days from the death of their father, applied for administration of his estate in behalf of plaintiff in error, M. H. Tompkins, and waived their right to qualify in his favor. This right, by the express terms of the statute, they had the privilege to exercise “at any time.” The incumbent was likewise the choice of the wife, who is first to be preferred, and both daughters of the decedent. His fitness for the office of administrator is not questioned in this record; his eligibility to appointment is plain, and under the evidence his authority as administrator ought not to have been revoked. For these reasons, the order of October 6, 1915, granting letters of administration with the will annexed of J. W. Poff to defendant in error, Lewis Poff, and revoking the appointment of the plaintiff in error, M. H. Tompkins, as such administrator, is erroneous and must be reversed and annulled, and said proceeding dismissed with costs to the plaintiff in error against the defendant in error both in the circuit court and in this court.