Crommelin v. Raoull, 53 So. 745

53 So. 745 | Ala. | 1910

ANDERSON, J.

It is uncontroverted that the appellant, under the terms of sections 2520 and 2523 of the Code 1907, is entitled to the preference in the appointment as an administrator of the deceased. The only ground urged against his appointment relates to his disqualification, rather than the relationship.

Section 2508 of the Code of 1907 provides the grounds of disqualification, and our court has heretofore held that these statutory grounds are exclusive. — Kidd v. Bates, 120 Ala. 79, 23 South. 735, 41 L. R. A. 154, 74 Am. St. Rep. 17; Williams v. McConico, 27 Ala. 572. It is true that the statute (section 2508) mentions executors only, in dealing with grounds of disqualification; but as far back as the year 1856, this court in the case of Williams v. McConico, supra, applied said statute to administrators also, and held that every one was a fit person to be an administrator, unless disqualified by. some one of the causes specified in section 1658 of the Code of 1852, and which appears without material change as section 2508 of the Code of 1907. This section has been re-enacted repeatedly, and we must hold that the construction given it in the case of Williams v. McConico, supra, was acceptable to the lawmaking power, and that it was re-enacted subject to said construction, as we find nothing elsewhere in the subsequent Codes limiting said section or extending the grounds of disqualification, as to administrators.

It is true the arrangement of the present Code is not identical with the Code of 1852, as the present Code deals with executors and administrators in different articles to the same chapter, while the Code of 1852 grouped them in the same article; but we do not think a mere rearrangement of the subjects, for convenience, with no change in the language of the sections, showed a legislative intent to remove administrators from the influence of section 2508 of the Code of 1907. Moreover, they are dealt with in the same chapter, which relates to “administration of estates.” The construction given in the case of Williams v. McConico, supra, was not changed in the case of Bingham v. Crenshaw, 34 Ala. 687. It was not overruled or qualified in the slightest, and the opinion could amount to no more than a criticism, if that, and, if a criticism, the warning was not heeded by the lawmaking power, who seem to have been satisfied with the construction given the statute in the case of Williams v. McConico, supra.

The grounds urged against the appellant are not embraced in the causes of disqualification enumerated in section 2508, and, the appellant being entitled by way of preference, lie should have been appointed, and the probate court erred in refusing him the appointment.

The decree of the probate court is reversed, and the cause remanded.

Reversed and remanded.

Dowdell, O. J., and Simpson and McClellan, JJ., concur. Mayfield, Sayre, and Evans, JJ., dissent.