Petteys v. Hutchings

Me. Justice Thompson delivered the opinion of the court. The only question involved in this appeal is as to the rights of the respective parties, John G-. Petteys, as public administrator of Grundy county, or John J. Hutchings, on the request of the widow and his own petition, to administer on the estate of the deceased. Section 18 of the Administration Act gives preference in administering on estates to certain relatives in a certain fixed order, and after the relatives to the public administrator or any creditor who shall apply for the same. The Act provides that: “Preference and the fight to nominate under this Act must be exercised within sixty days from the death of the intestate, at the expiration of which time administration shall be granted to the public administrator.” Over a year had elapsed before the application was made to have the son appointed administrator, and the public administrator contends his right to administer had thereby become absolute. If the contention of appellant be sustained, the result would be that in every case where a will is set aside on a contest in equity or otherwise, the public administrator or a creditor would thereafter be the only person who might be appointed administrators, and the members of the family would be excluded. Section 48 provides that whenever administration is granted to the public administrator and it shall afterwards appear there is a widow or next of kin, it shall be the duty of the court to revoke the letters to the public administrator and grant letters to the widow, next of kin or a creditor as is entitled thereto, provided application is made by such person within six months after letters were granted to the public administrator. Section 38 makes provision where the letters of executors are revoked for the granting of “administration with the will annexed or de bonis non, to the surviving husband or wife or next of kin.” Section 18 also provides that when the estate is solvent and without minor heirs and it is desired by the parties in interest to settle the estate without administration this law shall not apply. From the reading of the entire act we hold that the word “shall” in section 18 should be construed as “may” when a controversy arises between the heirs of the estate and the public administrator, and that the legislature never contemplated that the public administrator, in cases where wills are set aside on a contest more than sixty days after the death of the testator, should have an absolute right to administer on the estate as against the widow or heirs who desire to administer and are entitled to the • estate. When the will was set aside the parties had the right to administer on the estate in the oirder named by the statute, and there was no error in the ruling of the Circuit Court. The costs of this appeal in this court should be taxed to John Gr. Petteys in his individual capacity. The judgment of the Circuit Court is affirmed. Affirmed.