Tompkins v. Poff

Citations

• 120 Va. 162
• 90 S.E. 630
• 1916 Va. LEXIS 165

Syllabus

<p>1. Executors and Administrators — Who to be Appointed Administrator — Distributees—Code, Sections 2637 and 2639 — Designees. — Sons of a testator, although devisees and legatees under his will, would have been his distributees had the testator died intestate, hence by the terms of sections 2637 and 2639 of the Code are entitled to apply for administration with the will of the father annexed — no executor having been named in. the will — and consequently may “at any time waive their right in favor of any other person.”</p> <p>2. Executors and Administrators — Appointment—Code, Sections 2637 and 2639 — Designation by Distributees — Removal Only for Cause. — Reading sections 2637 and 2639 of the Code together it is clear that a distributee who applies for administration and is appointed and qualifies can only be removed for cause; and 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. This construction is not an undue discrimination between distributees of the same class, but simply recognizes the priority of application among the class of eligibles.</p> <p>3. Executors and Administrators — Appointment of Distributee or Designee — Creditors or Other Person — Removal—Code, Section 2640. — Section 2639 of the Code recognizes two classes of persons as eligible to appointment as administrators: (1) distributees or their designees, and (2) creditors or any other person after the expiration of thirty days from the death of the intestate. The provision of section 2640 which allows a distributee, upon mere notice, to displace