Davis v. Miller

106 Ala. 154 | Ala. | 1894

COLEMAN, J.

— Letters of administration were granted by the probate court of Mobile County to Sarah M. Miller upon the estate of her deceased husband during her minority. As administratrix she instituted suit against M. L. Davis. Pending this suit, M. L. Davis applied to the probate court to revoke the letters of administration. The application for her removal was based upon several grounds.

The fact that the petition for letters incorrectly stated the date of her intestate’s death was immaterial. The only important question was, whether he was in fact dead, when the letters were granted, and when the petition was filed. Nor was it necessary or material that the petition was filed by attorneys at law for her, instead of in her own name ; nor was it necessary that the petition should nave been sworn to. The petition was in legal form and contained all the facts necessary to call into exercise the jurisdiction of the court. It was admitted that Sarah M. Miller had not arrived at legal age at the time of her appointment, and it is also an uncontroverted fact, that prior to the time of the action of the court upon the anplication made to have her removed, that she attained full age, and appeared in court, and in writing formally ratified and confirmed her appointment as administratrix, her bond as such, and all and singular her acts done by her in a representative capacity. At the hearing the court sustained a demurrer to the application for her removal, and denied and dismissed the same.

Pretermitting the fact, that M. L. Davis, a debtor, is not included in any class of those authorized by the statute, (Code, § 2047), to interfere and apply for the revocation of letters of administration after the same have been issued, the question involved is, whether letters granted to one during his or her minority are void or voidable, and if voidable, whether the court erred in refusing to revoke them.

In the case of Savage v. Benham, Admr., 17 Ala. 126, the court used the following language : “We are clearly of opinion that her appointment at most was only voidable,' and that having consented to the appointment and fully ratified it since she has come of age, by filing her bill and proceeding in the cause of administration upon the effects of her deceased husband, she could not set up her infancy to avoid the grant of administration or her liability upon her bond. * * * * * * It does not lie with the defendants to say she should not recover, because there was a time, when she could have avoided her bond.”

In the case of English's Ex’r v. McNair’s Adm’rs, 34 Ala. 48, arguendo in reference to the validity of letters of administration granted to a married woman, it is said : “Her administration, like that of an infant or alien, might be at any time, by appropriate proceeding, revoked ; but in the absence of such revocation it is not to be deemed a nullity.”

The principles upon which these decisions rest, have been often recognized, by this court. We think they are correct, and adhere to them.

The court had jurisdiction to grant letters upon the estate of decedent. The person appbinted was the widow and the proper person to administer. — Code, § 2014. Her capacity is not questioned. No.question is made as to the sufficiency and validity of her bond. She formally and in court, after attaining her legal majority, ratified the appointment, her bond, and all acts done in her representative capacity during her minority. We do not see how the court could have acted otherwise with due regard to legal principles and the rights of the administratrix.

Affirmed.