and applying for the same, in the following order: Executor dying, administrator appointed according to this section: Little v. Berry, 94-433. Public administrator postponed to all named in this section, even though applying after six months: In re Bailey's Will, 141-193. 1. To the husband or widow, except as hereinafter provided. Widow must be 21: Wallis v. Wallis, 60-78. Infant widow may appoint: Ibid. Husband's rights, In re Meyers, 113-545; Hoppiss v. Eskridge, 37-54. See section 4. 2. To the next of kin in the order of their degree, where they are of different degrees; if of equal degree, to one or more of them, at the discretion of the clerk. Appointee of next of kin not qualifying, clerk appoints: Williams v. Neville, 108-559. Nonresident next of kin may appoint: Smith v. Munroe, 23-345. Appointment by nonresident only durante absentia: Ritchie v. McAuslin, 2-220. Several applicants of equal degree, clerk selects: Garrison v. Cox, 95-353. Brothers applying, which selected: Moore v. Moore, 12-352. Right to distributive share entitles one under this subsection: Smith v. Munroe, 23-345. Right not absolute and exclusive: Stoker v. Kendall, 44-242. See Atkins v. McCormick, 49-274. 3. To the most competent creditor who resides within the state, and proves his debt on oath before the clerk. Assignee of claim against decedent not entitled: Pearce v. Castrix, 53-71. Creditor postponed to all of next of kin, provided next of kin apply in time: Carthy v. Webb, 4-20, 6-268. 4. To any other person legally competent. Those entitled not applying in six months, and public administrator not applying, who entitled: Garrison v. Cox, 95-353. Nonresident dying, leaving insurance policy with resident, such resident entitled: Page v. Life Ins. Co., 131-115; Shields v. Life Ins. Co., 119-380. Code, s. 1376; C. C. P., s. 456; R. C., c. 46, ss. 2, 3; 1868-9, c. 113, s. 115. 4. Husband, on wife's estate; his interest therein. If any married woman shall die wholly or partially intestate, the surviving husband shall be entitled to administer on her personal estate, and shall hold the same, subject to the claims of her creditors and others having rightful demands against her, to his own use, except as hereinafter provided. If the husband shall die after his wife, but before administering, his executor or administrator or assignee shall receive the personal property of the said wife, as a part of the estate of the husband, subject as aforesaid, and except as provided by law. Code, s. 1479; 1871-2, c. 193, s. 32. Husband dying without administering, creditor can not be appointed administrator of wife: Wooten v. Wooten, 123-219. Wife dying testate, appointing no executor, husband administers: In re Meyers, 113-545. Husband can appoint: Ibid. Wife's property, after debts paid, goes to husband: Bank v. Gilmer, 116-701; Whit aker v. Hamilton, 126-468; Colson v. Martin, 62-125; Coleman v. Hallowell, 54-204. Where wife had an interest as distributee in whatever might be recovered for her father's death by wrongful act, and such wife died before recovery, husband gets it: Neill v. Wilson, 145-. 5. Disqualifications. The clerk shall not issue letters of administration or letters testamentary to any person who, at the time of appearing to qualify— 1. Is under the age of twenty-one years. Infant feme covert can not administer but may appoint: Wallis, 60-78. Such appointment durante minore, Ibid. Wallis v. 2. Is a nonresident of this state; but a nonresident may qualify as executor. Nonresident being appointed, qualifying and giving bond not disqualified: Moore v. Eure, 101-16. Nonresident next of kin may appoint durante absentia: Smith v. Munroe, 23-345; Ritchie v. McAuslin, 2-220. Nonresident administrator can not sue in this state: Hall v. Rwy., 145-. 3. Has been convicted of a felony. 4. Is adjudged by the clerk incompetent to execute the duties. of such trust by reason of drunkenness, improvidence or want of understanding. "Incompetent" defined in Stephenson v. Stephenson, 49-472. 5. Fails to take the oath or give the bond required by law. 6. Has renounced his right to qualify. Code, ss. 1377, 1378, 2162; C. C. P., s. 457. 6. When disqualified persons entitled. Where an executor named in the will, or any person having a prior right to administer, is under the disqualification of nonage, or is temporarily absent from the state, such person is entitled to six months, after coming of age or after his return to the state, in which to make application for letters testamentary, or letters of administration. Code, ss. 1379, 2165; C. C. P., ss. 452, 460; R. C., c. 46, s. 12. Infant feme covert coming of age entitled: Wallis v. Wallis, 60-78. Nonresident next of kin returning to state entitled: Smith v. Munroe, 23-345; Ritchie v. McAuslin, 2-220. Persons deemed to have renounced may yet be entitled as against public administrator: In re Bailey Will, 141 193. 7. Forfeiture by divorce or felonious slaying. When a marriage shall be dissolved a vinculo, the parties respectively, or when either party shall be convicted of the felonious slaying of the other, or of being accessory before the fact of such felonious slaying, the party so convicted shall thereby lose all his or her right to administer on the estate of the other, and to a distributive share in the personal property of the other, and every right and estate in the personal estate of the other. Code, s. 1480; 1889, c. 499; 1871-2, c. 193, s. 42. Foreign divorces recognized and not recognized, see cases under section 2109. Doctrine laid down in Owens v. Owens, 100-240, changed by this section. 8. Elopement and adultery of wife forfeits right. If any married woman shall elope with an adulterer, and shall not be living with her husband at his death, she shall thereby lose all right to a distributive share in the personal property of her husband, and all right to administer on his estate. Code, s. 1481; 1871-2, c. 193, s. 44. Bigamy of wife a forfeiture to rights in property of first husband: Gathings v. Williams, 27-487; Irby v. Wilson, 21-568; Brinegar v. Chaffin, 14-111. See Owens v. Owens, 100240, partially obsolete since amendment to section 7. 9. How husband forfeits right as to wife's estate. If any husband shall separate himself from his wife, and be living in adultery at her death, or if she shall have obtained a divorce a mensa et thoro, and shall not be living with her husband at her death, or if the husband shall have abandoned his wife, or shall have maliciously turned her out of doors, and shall not be living with her at her death, he shall thereby lose all his right and estate of whatever character in and to her personal property, and all right to administer on her estate. Code, s. 1482; 1871-2, c. 193, s. 45. "Abandoned" defined: State v. Hopkins, 130-647; Setzer v. Setzer, 128-170; High v. Bailey, 107-70. As to marriages contracted prior to statute, see Taylor v. Taylor, 93-418, 112-134. execu 10. Executor may renounce. Any person appointed an tor may renounce the office by a writing signed by him, and on the same being acknowledged or proved to the satisfaction of the clerk of the superior court, it shall be filed. Code, s. 2163; C. C. P., s. 450. Can renounce if he has not undertaken office or intermeddled: Sawyer v. Dozier, 27-97. Can not renounce after probate without leave of court: Mitchell v. Adams, 23-298. Can not if he has meddled with estate: Ibid.; also Sawyer v. Dozier, 27-97. Renouncing, administrator c. t. a. succeeds to powers: Saunders v. Saunders, 108-327. Renunciation must appear of record: Springs v. Irwin, 28-27. May retract renunciation: Davis v. Inscore, 84-396; Wood v. Sparks, 18389; Can not renounce after entering on exercise of trust: McIntyre v. Proctor, 145-288; Washington v. Blunt, 43-253; Sawyer v. Dozier, 27-97. Executors have the right to decline the office, but after accepting and qualifying can not resign; McIntyre v. Proctor, 145-288. 11. When renunciation required. When any person applies for administration, and any other person has prior right thereto, a written renunciation of the person or persons having such prior right must be produced and filed with the clerk. Code, s. 1378; C. C. P., s. 459. Next of kin must make renunciation before clerk can appoint another within 6 months of decendent's death: Williams v. Neville, 108-559. Mere expressed intent to renounce will not do: Ibid; see Hill v. Alspaugh, 72-404. If any 12. When person entitled deemed to have renounced. person, entitled to letters of administration, fails or refuses to apply for such letters within thirty days after the death of the intestate, the clerk, on application of any party interested, shall issue a citation to such person to show cause, within twenty days after service of the citation, why he should not be deemed to have renounced. If, within the time named in the citation, he neglects to answer or to show cause, he shall be deemed to have renounced his right to administer, and the clerk must enter an order accordingly, and proceed to grant letters to some other person. If no person entitled to administer shall apply for letters of administration on the estate of a decedent within six months from his death, then the clerk may, in his discretion, deem all prior rights renounced and appoint some suitable person to administer such estate. Code, s. 1380; C. C. P., s. 460 (a); 1868-9, c. 203. Deemed to have renounced, when: Withrow v. DePriest, 119-541; Williams v. Neville, 108559; Hill v. Alspaugh, 72-404; Hughes v. Pipkin, 61-4; Stoker v. Kendall, 44-242. Renunciation not per se: In re Bailey Will, 141-194. Appointee of person entitled, not qualifying, so deemed: Williams v. Neville, 108559. Appointment after six months not revoked at instance of one having prior right applying after six months: Withrow v. DePriest, 119-541; In re Bailey Will, 141-195. 13. When executor deemed to have renounced. If any person appointed an executor does not qualify or renounce within sixty days after the will is admitted to probate, the clerk of the superior court, on the application of any other executor named in the same will, or any party interested, shall issue a citation to such person to show cause why he should not be deemed to have renounced. If, upon service of the citation, he does not qualify or renounce within such time, not exceeding thirty days, as is allowed in the citation, an order must be entered by the clerk decreeing that such person has renounced his appointment as executor. Code, s. 2164; C. C. P., s. 451. Discussed generally in Ward v. Sparks, 18-389. III. WILL ANNEXED. 14. Letters with, issued when. If there is no executor appointed in the will, or if, at any time, by reason of death, incompetency adjudged by the clerk of the superior court, renunciation, actual or decreed, or removal by order of the court, or on any other account there is no executor qualified to act, the clerk of the superior Code, s. 1480; 1889, c. 499; 1871-2, c. 193, s. 42. Foreign divorces recognized and not recognized, see cases under section 2109. Doctrine laid down in Owens v. Owens, 100-240, changed by this section. 8. Elopement and adultery of wife forfeits right. If any married woman shall elope with an adulterer, and shall not be living with her husband at his death, she shall thereby lose all right to a distributive share in the personal property of her husband, and all right to administer on his estate. Code, s. 1481; 1871-2, c. 193, s. 44. Bigamy of wife a forfeiture to rights in property of first husband: Gathings v. Williams, 27-487; Irby v. Wilson, 21-568; Brinegar v. Chaffin, 14-111. See Owens v. Owens, 100240, partially obsolete since amendment to section 7. 9. How husband forfeits right as to wife's estate. If any husband shall separate himself from his wife, and be living in adultery at her death, or if she shall have obtained a divorce a mensa et thoro, and shall not be living with her husband at her death, or if the husband shall have abandoned his wife, or shall have maliciously turned her out of doors, and shall not be living with her at her death, he shall thereby lose all his right and estate of whatever character in and to her personal property, and all right to administer on her estate. Code, s. 1482; 1871-2, c. 193, s. 45. "Abandoned' defined: State v. Hopkins, 130-647; Setzer v. Setzer, 128-170; High v. Bailey, 107-70. As to marriages contracted prior to statute, see Taylor v. Taylor, 93-418, 112-134. execu 10. Executor may renounce. Any person appointed an tor may renounce the office by a writing signed by him, and on the same being acknowledged or proved to the satisfaction of the clerk of the superior court, it shall be filed. Code, s. 2163; C. C. P., s. 450. Can renounce if he has not undertaken office or intermeddled: Sawyer v. Dozier, 27-97. Can not renounce after probate without leave of court: Mitchell v. Adams, 23-298. Can not if he has meddled with estate: Ibid.; also Sawyer v. Dozier, 27-97. Renouncing, administrator c. t. a. succeeds to powers: Saunders v. Saunders, 108-327. Renunciation must appear of record: Springs v. Irwin, 28-27. May retract renunciation: Davis v. Inscore, 84-396; Wood v. Sparks, 18389; Can not renounce after entering on exercise of trust: McIntyre v. Proctor, 145-288; Washington v. Blunt, 43-253; Sawyer v. Dozier, 27-97. Executors have the right to decline the office, but after accepting and qualifying can not resign; McIntyre v. Proctor, 145-288. 11. When renunciation required. When any person applies for administration, and any other person has prior right thereto, a written renunciation of the person or persons having such prior right must be produced and filed with the clerk. |