27 Ala. 701 | Ala. | 1855
Conceding the facts stated in the petition to be true, as we must upon the trial of its legal sufficiency on demurrer, we think the court erred in dismissing it.
The Code gives the right to administer, first, to the widow, “ if she is willing to accept, and fit to serve.” — § 1668. She did not relinquish by failing to apply within forty days after the death of her husband was known (§ 1669) ; nor did she relinquish, or renounce, as provided in section 1662, for, in such case, the record must show either that she appeared before the judge of probate and declared her renunciation, or that she “ renounced the appointment in writing, under her hand, attested by a judge of probate, judge of the circuit or supreme court, or chancellor.” Her petition, then, clearly shows that she was entitled to the administration, to the exclusion of the present incumbent.
It would seem by the objections to the petition specified in the demurrer, that the appellee supposed the court had no power to set aside its previous grant of letters to him, unless upon an allegation of some of the grounds specified in chap. 4, title 4, part 2 of the Code, pages 342-5. But this application is predicated upon the fact, that the previous proceeding being ex parle, and the petitioner not being before the court, her rights are not to be concluded by the adjudication ; and she has the right, therefore, to propound her interest or
The judge should have heard the application, and, if sustained, should have set aside tho previous order, and granted letters of administration to tho petitioner.
Judgment reversed, and cause remanded.