Davis v. Davis , 33 Ga. App. 628 ( 1925 )

Jenkins, P. J.

In a contest for appointment as administrator, -“if there be several of the next of kin equally near in degree, the person selected in writing by a majority of those interested as distributees of the estate, and who are capable of expressing a choice, shall be appointed” (Civil Code of 1910, § 3943 (3)); and if the ijerson thus selected be competent, qualified, and disinterested (Popwell v. Nail, 27 Ga. App. 97, 107 S. E. 364), neither the ordinary nor the jury on appeal has any discretion in the matter (Mandeville v. Mandeville, 35 Ga. 243 (3), 247) ; nor is such fitness to be measured and determined by a mere speculation that on account of business inexperience the person thus designated might waste the estate (Maddox v. Maddox, 27 Ga. App. 369, 108 S. E. 304); yet, on the other hand, the absence of legal fitness does not necessarily imply a lack of morality or good sense, but the issue of legal fitness, when submitted to the ordinary or to a jury on appeal, is to be tried and determined in the same way and under the same regulations as other issues of fact; and in passing upon such question they can properly consider all the proved facts and circumstances which might reasonably lead them to believe that the interest of the person so selected is nevertheless so adverse to that of the estate as would likely jeopardize its interest as against the rights of others having an interest therein. Moody v. Moody, 29 Ga. 519; Chalker v. Thornton, 31 Ga. App. 791 (3) (122 S. E. 244). There being no complaint of any error of law except than that a verdict in behalf of the caveator was demanded, this court is unable to say as a matter of law that, under all the facts and circumstances testified to in behalf of the defendant in error, the verdict sustaining the judgment of the ordinary and approved by the trial judge, which necessarily involved the question as to the legal unfitness of the' caveator, was without sufficient evidence to support it.

Decided April 10, 1925.

Judgment affirmed.

Stephens and Bell, JJ., concur. P. G. Andrews, for plaintiff in error. II. J. MacIntyre, contra.