Davis v. Swearingen

56 Ala. 539 | Ala. | 1876

MANNING, J.

Appellant, E. A. Davis, is not brought within any of the classes of persons, who, according to section 1986, are, “ if fit to serve,” successively entitled to have letters of administration on the estate of a decedent granted to them. He was not husband of the deceased, Mrs. Swearingen, nor next of kin entititled to share in the distribution of the estate, nor a creditor. The refusal of the Probate Court to appoint him administrator, and the appointment of another in his stead, is, therefore, no ground for an appeal on his behalf from the orders of the Probate Court to this court. Some discretion must be, and is by the statutes on the subject, left to the judge of probate, in the selection of an administrator for an estate under his jurisdiction, where none of the persons applying} for, or willing to accept the office, have any right to it over the others. — R. 0. § 1986, cl. 4; § 1990; Phillips v. Peteet, 35 Ala. 696.

2. It is, moreover, shown that the appellant is not the most proper person to be appointed administrator in this instance. From the evidence, and his it pears that the only known effects and assets to be administered, of the estate of the deceased, Mrs. Swearingen, are to come from the estate of her father, on its final settlement; and that appellant’s-father is, and-since 1863 or 1864 has been, administrator of said estate, has never made a final settlement thereof, and is the person by whom the accounting and settlement must be made, with the administrator of Mrs. Swearingen, and others. Eli Swearingen, the only surviving heir and next of kin of the deceased, Mrs. Swearingen* although during so many years since his mother’s death, perhaps because he was not aware of the existence of these assets of her estate, he has not applied for letters of administration thereon, and thereby lost his statutory right of priority, is certainly to be preferred as the proper grantee of them, if otherwise fit to serve, over appellant. The discretion of the court was properly exercised in this case.

Let the decree of the Probate Court be affirmed.