189 So. 770 | Ala. | 1939
The probate court, within less than forty days after the death of Tom Bivin, appointed the appellee, E. T. Millsap, administrator of the estate of said Tom Bivin, deceased. The petition for the appointment was made by Willie Bivin, claiming to be the widow of the decedent as well as his next of kin. The right to appointment can not be delegated to another to the exclusion of the person upon whom the statute next casts the right, Curtis v. Williams,
The petition in question to revoke the appointment of Millsap was made by one Mary Bivin claiming to be the lawful widow of the decedent, and, if she was, she was entitled to have the appointment of Millsap revoked, but not necessarily the right to delegate her right to Ratcliffe.
The statute, § 5742 of the Code of 1923, provides for the order in which administrators should be appointed and the widow is preferred in the first class, so the real question in this case was whether Willie or Mary was the lawful widow of the decedent and which said issue was submitted to the trial court who denied the petition and from said decree this appeal is prosecuted.
In order to review said decree, it must appear that the appellant excepted to same which fact does not appear. Taylor v. McElrath,
The appellee's counsel rely on section 9459 of the Code of 1923, as dispensing with the necessity to except to the ruling of the probate court in denying the petition, and the case of Wimbush v. State, Ala.Sup.,
The decree of the probate court must be and is affirmed.
THOMAS, BROWN, and KNIGHT, JJ., concur.