Davis v. Swearingen

56 Ala. 31

Opinion

STONE, J.

More than five. years elapsed between the death of Martin Van Swearingen, in 1870, and the ápplication of either of the contestants to be appointed his administrator. This being the case, no one could claim the legal right to be preferred as the appointee. — Bev. Code, §§ 1986, 1987; Curtis v. Burt, 34 Ala. 729; Curtis v. Williams, 33 Ala. 570; Forrester v. Forrester, 37 Ala. 398. Even if prior statutory rights could be respected in this case, Swearingen, being'next of kin to decedent, would be preferred to Davis, who, at most, was only a creditor. — Rev. Code, § 1986. No one having tbe statutory right to be preferred in the appointment, the Probate Court is clothed with a large and liberal discretion in the matter of the appointment. In this service, he exercises a general and exclusive jurisdiction; and all intendments are indulged in favor of regularity, which are accorded to other general jurisdictions. Petition for administration, although certainly a desirable practice, is not a necessary pre-requisite to the validity of an appointment. Whenever administration is granted, this is prima facie evidence of all precedent facts to give the court jurisdiction.— Sims v. Boynton, 32 Ala. 353 ; Ikelheimer v. Chapman, Ib. 676; Gray v. Cruise, 36 Ala. 559; Coltart v. Allen, 40 Ala. 155; Eslava v. Elliott, 5 Ala. 264. Under these rules, we presume the existence of everything necessary to give validity to the appointment, which the record does not contradict. There is nothing in the record which shows that Swearingen, the appointee, was wanting in any of the qualifications for the trust; and in appointing him to the exclusion of Davis, the judge of probate, so far as we are informed, only exercised the discriminating discretion, with which the law has clothed him. — See Davis v. Swearingen, at the present December term.

The decree of the Probate Court is affirmed.