In re Webb's Estate

• Decision Date: 28 March 1932
• Docket Number: 13009.
• Citation: 90 Colo. 470,10 P.2d 947
• Parties: In re WEBB'S ESTATE. v. JACK. THOMPSON et al.
• Court: Colorado Supreme Court

10 P.2d 947

90 Colo. 470

In re WEBB'S ESTATE.

THOMPSON et al. v. JACK.

No. 13009.

Supreme Court of Colorado, En Banc.

March 28, 1932

Rehearing Denied April 25, 1932.

Error to District Court, La Plata County, W. N. Searcy, Judge.

Separate proceedings by Clyde Thompson, by I. N. Jack, and by Silas Smith for the appointment of an administrator of the estate of John Webb, deceased. To review a judgment of the district court affirming a judgment of the county court granting letters of administration to I. N. Jack, Clyde Thompson and others bring error.

Reversed and remanded, with instructions.

John B. O'Rourke, of Durango, and E. M. Sabin of Denver, for plaintiffs in error.

Benj. B. Russell, of Durango, for defendant in error.

ALTER J.

John Webb died at Durango, Colo., on October 12, 1930, possessed of a considerable estate consisting of Liberty bonds, savings account, notes, and other securities and cash, but no real estate. He had no known heirs, and left no will. Almost immediately upon his death a mad scramble for appointment as administrator began, which resulted in the appointment of I N. Jack as administrator to collect. On November 3, 1930, all of the alleged creditors of the deceased, except one thereof, filed their petition in the county court requesting the appointment of one of their number, Clyde Thompson, as administrator, which petition was by the county court, on November 7, 1930, set for hearing and determination on November 10, 1930. While the petition for the appointment of Thompson was being heard by the county court, I. N. Jack, who was the duly appointed and qualified administrator to collect, but who does not claim to be a creditor of the estate, filed his petition requesting his appointment as general administrator, and on the same day, and under the same circumstances, Silas W. Smith, claiming to be a creditor of deceased, filed his petition asking that I. N. Jack be appointed administrator, or, in event that I. N. Jack should not be appointed, that he (Smith) be appointed as general administrator. Immediately upon the filing of the petition of I. N. Jack, and the Smith petition asking the appointment of I. N. Jack, or in the alternative, Silas W. Smith, Clyde Thompson, and other creditors filed a motion for a change of vanue alleging that the judge of the county court and I. N. Jack were brothers-in-law, and that the attorney appearing for I. N. Jack was a brother of the judge of the county court, Before whom the petition was being considered. The county judge denied the motion for a change of venue, assigning as his reason that it was filed too late.

During the period between Webb's death and the hearing just referred to, numerous petitions, objections, and protests respecting the administration of the estate were filed, but we deem it unnecessary to notice these here. At the conclusion of the hearing in the county court, the judge thereof made certain findings of fact and assigned various reasons for denying both the Thompson and the Smith petitions, and granted letters of administration to I. N. Jack, his brother-in-law. An appeal to the district court was perfected by Thompson and his petitioning creditors, where, upon trial commencing December 19, 1930, a judgment was rendered on January 12, 1931, affirming the action and judgment of the county court. The motion for a new trial, filed by Thompson and his petitioning creditors in the district court on January 26, 1931, was denied by the district court on October 9, 1931. Thompson sued out this writ of error on December 22, 1931.

The only assignment of error which we deem it necessary to consider for a complete determination of this cause is the construction of section 5222, C. L. 1921, and the rights of creditors thereunder. That part of section 5222 which is pertinent herein, reads as follows: 'Administration shall be granted to the husband or the widow or next of kin of an intestate, or some of them, if they will accept the same and are not disqualified, but in all cases the husband or widow shall have the preference; but if no husband, widow or other relative of the intestate shall apply within twenty days from the death of such intestate, the county court may grant administration to any creditor who shall apply for the same; and in case no such application be made by any creditor within ten days next ensuing the lapse of said term of twenty days as aforesaid, or in case of the filing in such court by the husband, widow or next of kin, a written relinquishment of his or her right to administer said estate, administration may be granted to such person as the county judge may think will best manage the estate. * * *'

Neither widow nor next of kin applied for appointment, nor was the written relinquishment of this right to administration filed by them in the county court. It is also unquestioned that Dr. Rensch, who was the personal physician of the intestate and in attendance upon him during his last illness, was a creditor of decedent at the time of his death; that Thompson, at whose house deceased lived for some months prior to his demise, was also a creditor of decedent; that deceased was indebted to the Parsons Drug Company in some small amount for drugs furnished during his last illness, and that these creditors all signed the application for Thompson's appointment, as did also Mattie J. Hood, who was the mortician in charge of the burial of decedent. Silas W. Smith claimed to be a creditor of decedent's, which claim is controverted, but with Smith's status we are not concerned, because his request for his own appointment was denied.

In order to determine the rights of Thompson to appointment as administrator, we ascertain (1) whether the statute (section 5222, C. L. 1921) gives a creditor, who is not legally disqualified, a preferential right to an appointment, under the circumstances here; (2) does the statute, supra, vest any discretion whatever in the county judge, under the circumstances here, and (3) what, if any,...