#### MIRANDA STEPHENSON *v.*JAMES F. STEPHENSON.

In the appointment of an administrator, a person who cannot write, nor read writing, and has no experience in keeping accounts, or in settling estates, is *incompetent,*within the meaning of the statute, (Rev. Code, ch. 46, sec. 3.)

Where a Judge is vested with a discretionary power in making an appointment, but refuses to exercise such discretion, and appoints one whom he erroneously supposes he is bound, in law, to appoint, *Held*that an appeal would lie to this Court and the decision should be reversed, and the cause remanded, that he might proceed to exercise a sound discretion in making the appointment.

Appeal from an order, made by bis Honor, Judge Digs, directing the appointment of an administrator. From Alexander county.

The plaintiff was the'widow of the intestate, William Stephenson, and as such, made an application to the County Court of Alexander, at the first term after her husband’s death, for administration upon his estate. Her appointment was opposed, upon the ground of incompetency, and the defendant, who was the appointee of the next of kin, (though not himself related to the intestate) was appointed.

The plaintiff appealed to the Superior Court, and it was made to appear to his Honor, that the plaintiff could not write, nor read writing, and had no 'experience in this kind of business, but that she was a woman of ordinary capacity, and a hale and hearty person.

The Court being of opinion that the word incompetent, mentioned in the statute, (Rev. Code, ch. 46, sec. 3.) “ applied to the mind, and had regard to mental incompetency, and as the widow was a woman of ordinary capacity, and a hale and hearty woman, but had no experience in this business,” he reversed the judgment of the County Court appointing the defendant, and directed a procedendo to issue to the said court, commanding them to give the 'appointment to the plaintiff, upon her entering into bond, with the sureties required by law. From which judgment the defendant appealed to this Court.

*473
      *Mitchell*and JBoyden, for plaintiff.

*W. JP. Caldwell*and *JNeal,*for defendant.

Pearson, J.

We do not concur with his‘ Honor as to the meaning of the word, incompetent, as used in the statute. When two persons, who claim a right to administer, are in equal degree, the court may, in its discretion, grant the administration to one or both, “ or if the person, applying, shall be deemed incompetent, then the court may grant administration to some discreet person.” Ilis Honor was of opinion that the word, incompetent, applied to the *mmd,*and had regard to *mental*incapacity, and as the widow was a woman of ordinary capacity, and a *hale and hearty*woman, but had no experience in this business, he directed her to be appointed. One object of the statute was to provide that the management of estates should be entrusted to none but *fit*and *discreet persons,*and the word “incompetent” is obviously used in the sense of “ unfit.” This may be on account of mental incapacity, or bodily infirmity, or ignorance and inexperience in matters of business, such as keeping accounts, deciding upon the justness of claims, and many things of the kind, which require a considerable degree of experience, and capacity for the transaction of business. In this sense of the word, a woman who can neither write, nor read writing, and has no experience in business, is incompetent and unfit to be entrusted with the administration of an estate, although she may be ever so *hale and*hearty, and capable of much bodily endurance. The latter qualities would make her fit for an appointment where hard work was the .object, but not for one where accounts are to be kept, and settlements to be made and returned to court. Indeed, such a woman, acting as ad-ministratrix, would be forced to trust to agents, and be at the mercy of designing persons, thereby exposing the interest, of the other persons, who are interested in the estate, as well as her own, to the danger of much loss from mismanagement, if not from corruption ; against which, it was the purpose of the statute to provide a safeguard.

*474But it is objected, tbis is a matter confided to tbe *discretion*of the court below, and consequently, this Court cannot interfere.

That would be true, provided his Honor had exercised his discretion; but the error into which he has fallen, cramped his action, and did not leave him free to make the appointment according to his sound discretion. So, this construction of the statute presents a question of law, and makes it our duty to correct the effect of his Honor’s erroneous opinion in regard to it. In *Freeman*v. Morris, Busb. Rep. 287, his Honor refused to entertain a motion to amend, on the ground, that he had no power to allow the amendment. The judgment was reversed, because by reason of his erroneous opinion in respect to his want of power, he had not exercised his discretion. Our judgment is the same in this case, for the same reason. “The judgment must be reversed, and this opinion certified with directions to the Judge of the Superior Court, to proceed to make the appointment according to his sound discretion.”

Peis CuexaM. Judgment reversed.