Wheat v. Fuller

82 Ala. 572

• Court: Supreme Court of Alabama
• Decided: December 15, 1886
• Status: Published

Opinion

STONE, O. J.

John M. Wheat died in January, 1886, a resident at the time of Oullman county, and leaving a last will and testament, of which he named his wife, Susan B. Wheat, to be executrix. .The will was subsequently probated, but the date of the probate is not given. In October,. 18ti6, — nine months after Wheat died — Fuller, setting forth that he was the largest creditor, and held a note made by testator, containing a waiver of exemptions, prayed to be appointed administrator. The appointment, though made, was resisted by the widow and children of testator, on various grounds. First, that there were no assets above exemptions, or subject to administration. This, if true, furnished no ground for withholding administration.— Watson v. Collins, 37 Ala. 587; Bell v. Hall, 76 Ala. 546. It is objected in the next place, that the widow, who made application for appointment pending Fuller’s application, was entitled to be preferred in the appointment, for two reasons : first, she was named executrix in the will; and, second, the law gave her the first right. If .the executor fails to apply for appointment within thirty days after the probate of the will, or if the widow fails to apply for administration within forty days after decedent’s death is knowm, this is a surrender and renunciation of all preference the statute confers. — Code of 1876, §§ 2345 2350, as amended by act approved February 13, 1879 ; Acts Ala. 1878-79, p. 59 ; Curtis v. Burt, 34 Ala. 729; Forrester v. Forrester, 37 Ala. 398; Sowell v. Sowell, 41 Ala. 359.

If it be objected, that it does not appear in this record that thirty days had elapsed after the probate of the will, before Fuller filed his petition for appointment, the answer is — first, that very many exceptions were filed in opposition to his appointment, and that is not one of them; second, the Probate Court, in the matter of appointing personal representatives, is clothed with general jurisdiction, and the appointment oi Fuller was and is a judicial ascertainment and assertion that prima facie there was no legal impediment to his appointment. — Davis v. Swearingen, 56 Ala. 31; s. c., Ib. 539; Barclift v. Treece, 77 Ala. 528,

It is not shown in this record that any one had the statutory preferred right to claim the administration. In,such case, appointment by the Probate Court raises the presumption that the appointee'is a suitable person. There is nothing in this record to overturn that presumption.

■ If there are not assets of the estate that are not embraced in the exemptions, it would seem that no administration was necessary, and it may become a question whether the costs of administration will fall on the administrator personally.—Owens v. Childs, 58 Ala. 113. If, however, there is a debt, with waiver of exemptions, a different-principle may govern.—Bell v. Hall, supra.

Affirmed.