Stanley v. Stanley , 202 Ala. 661 ( 1919 )

Appellant, as the widow of one Alexander Stanley, made application to the probate court of Choctaw county for appointment as administratrix of his estate. This application, however, was made after the lapse of more than 40 days from the death of decedent, and therefore, under the provisions of section 2522 of the Code of 1907, she is held to have relinquished her preferential right under section 2520 of the Code. There was considerable delay in the execution of her bond as administratrix as required as a condition precedent in the order of the court, and the appellee, a son and only heir of the deceased, made application for letters of administration to be issued to him. There were numerous petitions and orders, as appear in the statement of the case, finally resulting in the court setting aside the order conditionally appointing the appellant, and entering an order appointing the appellee administrator of said estate.

It is urged by appellant's counsel that, as appellant had previously been appointed administratrix of said estate, and had not been lawfully removed therefrom, there was no vacancy in the office, and therefore the order appointing appellee was void, citing Matthews v. Douthill, 27 Ala. 273, 62 Am. Dec. 765; McDowell v. Jones, 58 Ala. 25; Pruett v. Pruett, 131 Ala. 578,32 So. 638; Hicky v. Stallworth, 143 Ala. 535,39 So. 267, 111 Am. St. Rep. 57, 5 Ann. Cas. 496, among other authorities.

We are of the opinion, however, that the fallacy of this argument lies in the assumption that the order of November 28th constituted a complete, valid, and legal appointment of appellant, the widow, as administratrix. The order of November 28th was but a conditional order, which had not been complied with after a reasonable lapse of time, when the appellee filed his application for letters; and the court had a right at that time to disregard and set aside said former order. Such was the holding of this court in Gray's Adm'r v. Cruise, 36 Ala. 559, where the question here at issue seems to have been presented. In that case one Brewer had been appointed administrator "on his executing and filing in this office his bond to approval in the sum of $2,000." The bond was not executed, and it was held that —

"In order to sustain the validity of the subsequent grant of administration de bonis non to the plaintiff, when collaterally assailed, this appointment of Brewer, under a conditional order which was never complied with, will be disregarded."

In Ex parte Maxwell, 37 Ala. 362, 79 Am. Dec. 62, the following comment upon the above authority is made:

"In the recent case of Gray's Adm'rs v. Cruise, 36 Ala. 559, the appointment of Brewer, unlike the appointment in this case, was conditional. The order was that he be appointed administrator on his executing and filing bond. The condition not having been complied with, it was held, not that an appointment actually made was void, but that no appointment was made. Therefore the question decided in that case is totally unlike that which arises in this."

The order in the instant case was likewise conditional; and clearly, after the lapse of a reasonable time and a failure on the part of the petitioner to comply with the order in regard to the bond (for what cause does not appear), the court had the right to disregard and set aside the order of November 28th, and entertain appellee's petition, and treat the case as presenting contesting applicants for letters of administration, as was done.

We therefore find no error, and the judgment of the probate court will be here affirmed.

Affirmed.

ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.