Hubbard v. Smith

45 Ala. 516

• Court: Supreme Court of Alabama
• Decided: January 15, 1871
• Status: Published

Opinion

B. F. S AFFÓLD, J,

The application for the removal of the administrator was made to the court from which the letters issued, by the-distributees. It was in writing, spec-’ ified two of the statutory grounds for removal, and was verified by the oath of the next friend of the minor distributees. — Rev. Code, 2019, 2020, 2017. It was therefore not subject to a demurrer. If the minors had no guardian, they were obliged to resort to a next friend.

It appears from the defense of the administrator, that the estate was quite small, consisting only of about three hundred and eighty dollars in money, and a note, received from the administrator-in-chief. He had sued on the note, and filed a bill to foreclose a mortgage given to secure its payment, and was proceeding with as much diligence as he could to collect it. In addition to this, he had never been cited by the court to make any settlement; but, on the contrary, the grand-mother of the children and their uncle, who had charge of them, and who is their next friend, had urged him to continue in the administration, and to conclude it with as, little expense as possible. He ought to have filed an inventory, as any other administrator is required to do, and to have made annual settlements. But his mere omission to do so, under the evidence, was not sufficient to justify his removal.

The judgment is reversed, and the cause remanded.