Forrester v. Forrester's Adm'rs

37 Ala. 398 | Ala. | 1861

A. J. WALKER, C. J.

The petitioner must be held to have relinquished his right, as the next of bin, to the administration, because e did not apply for letters within forty days after tire death of the intestate. — Code, § 1669. The petition, therefore, does not show a right to the removal of the administrators, upon the ground of the preference given by the statute to the next of kin.

[2.] The fourth subdivision of section 1690 of the Code makes “the wasting, embezzlement, or any, other maladministration of the estate,” a cause for the removal of an administrator. The petition shows that the administrators have made intentional "misstatements in their application for the sale of the land of the estate for division, as to matters which section 1868 of the - Code requires to be stated in the application; Is the making, of such misstatements a “maladministration of the estate,” which the fourth subdivision of section 1696 of the Code makes a ground for the removal of an administrator ? . The making of such misstatement is certainly an'act of misconduct on the.-part of the representatives of an estate; hut we cannot think it was intended that sucli" an’act should be embraced by the phraseology maladministration of the estate. If it had been so intended, every improper act of an administrator, intentionally done, would have been a cause of removal; and tbe entire third subdivision of section ,1696, which particularizes several kinds of misconduct, would have been entirely unnecessary. We understand “maladministration of the estate” to mean acts affecting'tbe property or assets of- the estate, of which wasting and embezzlement are specimens. — Johnson v. State, 32 Ala. 583.

Neither of the arguments in support of the petition can be- sustained, and we-must affirm the judgment of the court Mow..