1. The trial court did not err in denying the motion for summary judgment.

2. Alien heirs are entitled to nominate an administrator of an estate.

ARGUED OCTOBER 6, 1969 — DECIDED DECEMBER 5, 1969 — REHEARING DENIED DECEMBER 19, 1969 — CERT. APPLIED FOR.

The appellee, Demetrius James Zervis, made application to the Ordinary of Chatham County for appointment as the administrator of the estate of Gavriel Simeonides, alleging that he was the son and sole heir of the deceased. The appellants, Perikles Simeonides, Theopiste Simeonides, and Korina Simeonides, in a caveat to the appointment of the appellee, alleged that as the brother and sisters of the deceased, they are the sole heirs of Gavriel Simeonides; and that the appellee is not an heir at law; and requested the appointment of their nominees, a bank and an individual, as co-administrators. The appellants are nonresident aliens. After a hearing, the ordinary found that appellee was not entitled to appoint and appointed as co-administrators the individuals requested by appellants. Appellee appealed to the Superior Court of Chatham County. Appellants moved for summary judgment which was denied and this denial is appealed to this court. Admissions and other documents show that appellee was born to Martha Kirkland Zervis, now deceased, on December 25, 1938, who at the time was lawfully married to George Zervis; that four other children were previously born of this marriage which was dissolved by divorce on September 25, 1941; the appellee was never legally adopted by the deceased; and there was never a ceremonial marriage between the deceased and appellee's mother. In opposition to the motion, appellee submitted affidavits which in summary show that the deceased, Gavriel Simeonides, had made declarations to various persons, to include appellee, that appellee was his son and also that Gavriel Simeonides entered into a common law marriage with Martha Zervis subsequent to her divorce from George Zervis, thereby legitimizing appellee.

BELL, Chief Judge.

1. The appellee was born while his mother was lawfully married to George Zervis. This raises a strong presumption that appellee is the legitimate son of Zervis; but this presumption is rebuttable. Code § 74-101; Wright v. Hicks, 15 Ga. 160; Ellis v. Woods, 214 Ga. 105, 108 ( 103 S.E.2d 297). "When sexual intercourse is once proved, nothing short of impossibility in such case, should impugn the legitimacy of the offspring. But where sexual intercourse is presumed, merely from the propinquity of the parties, slighter proof is required to repel the presumption of paternity." Wright v. Hicks, (9) supra. The appellants, who have the burden of proof on summary judgment, have submitted no evidence that at or near the time of appellee's conception, his mother and his presumptive father in fact engaged in sexual intercourse so as to require application of the harsher rule of impossibility to rebut the presumption of legitimacy. The fact that four other children previously were born of this marriage shows no more than a presumption of sexual intercourse between the parties and a lesser degree of proof is required to rebut paternity. The declarations of the deceased made prior to this controversy are admissible on this issue. Estill v. Estill, 149 Ga. 384 (2) ( 100 S.E. 365). Consequently, a genuine issue of material fact is present for resolution by a jury, and appellants are not entitled to summary judgment. This holding is not in conflict with Sullivan v. Hugly, 32 Ga. 316. In that case a jury found in favor of the presumption of legitimacy where the evidence was conflicting. The court in passing on the sufficiency of the evidence stated it would not disturb the verdict since a case of plain impossibility was not demanded by the evidence.

2. There remains an additional issue for resolution. The appellants are admitted nonresident aliens. They are not qualified to be administrators by Code § 113-1203. It is urged that their disqualification to administer by reason of their alienage also deprives them of power as the ostensible heirs at law of the deceased to nominate a qualified resident administrator. Reliance is placed upon subsection 3 of Code § 113-1202 which provides: "If there shall 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." This provision has been construed to apply where there is disagreement, which is not present in this case, as to the selection of an administrator among the heirs. Walker v. Rowe, 41 Ga. App. 769 (3b) ( 154 S.E. 722). The term "capable" to express a choice used in this context applies, we believe, to disability caused by infancy or mental deficiency. See Mattox v. Embry, 131 Ga. 283 ( 62 S.E. 202); 33 CJS 943, Executors and Administrators, § 44b. There is no express statutory provision which disqualifies an alien heir of the power to nominate an administrator. The Supreme Court in Headman v. Rose, 63 Ga. 458, held that if an heir is disqualified to act as administrator, he is entitled nonetheless to select some qualified person to be appointed. In this connection it is well to consider subsection 6 of Code § 113-1202 which provides that persons entitled to an estate may select a qualified administrator. As the appellants may be entitled to this estate, they are authorized to select an administrator notwithstanding that they are expressly disqualified to take the administration themselves because of their status as nonresident aliens.

Judgment affirmed. Eberhardt and Deen, JJ., concur.