Williams v. McConico , 27 Ala. 572 ( 1855 )

G-.OLDTHWAITE, J.

In relation to the objections which have been urged against the appeal bond, it is only necessary to say, that under the law regulating this appeal (Code, § 1898), security for the costs only was required; and in such cases a simple acknowledgment in writing is all that is necessary, to the effect that the surety acknowledges himself security for the costs of the appeal. — Riddle v. Hanna, 25 Ala. 484. Here, the obligation is to pay the costs of the appeal, which is described with sufficient certainty, and it was approved by the proper officer, as his amended return shows, at the time the appeal was taken. STkis we regard as a substantial compliance with the law.

In relation to the case upon the merits, the record sets out the whole evidence, and shows that the application of the appellant, .as the widow of the intestate, for letters of administration, was resisted, on the ground that she was an unfit .person to act as administratrix. It being established that she was the widow, she was the first person entitled to administer (Code, § 1668); and under the law, every one is a fit person, unless disqualified by some one of the causes specified in section 1658. Allowing every legitimate inference in favor of the contestants upon the evidence offered by them, it is clear that it did not establish any ground of unfitness covered by the section of the Code to which we have referred; and they should have been required by the court to have joined in the demurrer (Alexander v. Fitzpatrick, 4 Port. 405), and judgment on it should have been rendered in'favor of the applicant.

Decree reversed, and cause remanded.