Curtis v. Burt

34 Ala. 729 | Ala. | 1859

R. W. WALKER, J.

The decision in Curtis v. Williams, made at the last term, (33 Ala. 570,) is conclusive of this case. The petition now before us alleges, that the widow and next of kin suffered forty days after the death of the intestate became known to elapse without applying for letters. The decision just cited clearly7 settles that they thereby forfeited their right to the administration. In that case, it was shown that, when the application of Curtis was filed, Williams was acting as administrator under an appointment by the court. We held, that this fiyct did not relieve Curtis of the necessity, imposed upon him by the statute, of making his application before the forty days after the intestate’s deatli became known expired; and that he would have forfeited his right to claim the administration, if he had failed to apply for letters within that period. Alike result — the forfeiture of her right to the administration — must attend the widow’s failure to apply for letters within the period designated. The statute which declares the effect of such failure, is peremptory, and without exceptions; and the pendency of Williams’ administration did not suspend its operation. The statute proceeds upon the presumption, that a widow who waits forty days, without making application, does not desire the administration ; and her failure to apply within that period is, as in favor of persons who succeed her in the order of right, and who have applied within the prescribed time, conclusive evidence of her relinquishment of her right. — Code, § 1669.

[2.] We do not think that the petition which the appellant filed, for the revocation of the letters issued to Mrs. Burt, can be considered as an abandonment of the application which was made by him within the forty days, for the grant of letters to himself.

The court erred in sustaining the demurrer to the petition.

Decree reversed, and cause remanded.