Markland v. Albes , 81 Ala. 433 ( 1886 )

SOMERVILLE, J.

— 1. The petition of the appellant, praying for the revocation of the letters of administration granted to the appellee, and for his own appointment as administrator of Mrs. Moore’s estate, was properly dismissed. Admitting that the letters first granted were premature, and that the appellant had-a prior right to administration, he nevertheless waived such right by allowing forty days from the death of the intestate to expire without asserting it by application to the Probate Court for the appointment. After the lapse of this statutory period no one has a right to claim any priority or preferences to such appointment, those entitled being declared by the statute expressly to have “relinquished their right to the administration,” by having failed to apply for it. — Code, 1876, §§ 2350-2351; Cunningham v. Thomas, 59 Ala. 158; Davis v. Swearinger, 56 Ala. 31; Sowell v. Sowell, 41 Ala. 359; Forrester v. Forester, 37 Ala. 398.

The demurrer was properly sustained, and there is no error in the judgment of the court dismissing the petition.

2. The motion to strike the bill of exceptions from the record must be sustained, it not appearing that it was signed by the judge in term time, or that there was consent or agreement of counsel authorizing it to be signed after adjournment. — Code, 1876, § 3113; Wood v. Brown, 8 Ala. 563; Union India Rubber Co. v. Mitchell, 37 Ala. 314; Pearce v. Clements, 73 Ala. 256.

3. Without the aid of a bill of exceptions, the rulings of the court, refusing to allow the petition to be amended, can not be reviewed in this court, as has been often and uniformly held. — Bright v. State, 76 Ala. 96, and cases cited.

Affirmed.