Brennan's Adm'r v. Harris , 20 Ala. 185 ( 1852 )

GOLDTHWAITE, J.

Under the statute, (Clay’s Digest, 220, § 1,) the right to letters of administration, in case of intestacy, belongs first to the widow, or next of kin, of the intestate, or some of them; and in case of their refusal, to a creditor. And by the act of 1821, (Clay’s Digest, 222, § 10,) authority is given to the judge having jurisdiction, to grant letters of administration to the sheriff or coroner of the county, when no one has been admitted or qualified within three months after the death of the deceased, or when the administration has become vacant by reason of death, resignation, or-removal. Under the influence of these statutes, we think there can be no doubt that the Court of Probate having jurisdiction is bound to commit the estate to administration, on the application of any one having an interest therein. A creditor having an interest in the estate, has a legal right to demand that it should be administered; and it is the duty of the Judge of Probate, on his application, to proceed to act in the premises.

But the mere refusal to act in such a case is not final, and cannot legally prejudice any future application. It is neither an interlocutory nor a final judgment, from which, under the act of 1850, (Pamphlet Acts, 33, § 29,) an appeal lies. The remedy is by mandamus, Ex Parte Jones, 1 Ala. 15.

The appeal must be dismissed.