Fulgham v. Fulgham

119 Ala. 403 | Ala. | 1898

COLEMAN, J.

The only question of importance presented by this appeal is whether the probate court is authorized to appoint a non-resident of the state, administrator, with the will annexed, of the estate of deceased testátor. The facts show that testator'departed this life in Bibb County, Alabama, a citizen and resident of said county, leaving a will by which he disposed of his estate, consisting of real and personal property, all of which was in Bibb County at the time of his death, to various legatees and distributees. He left, surviving him a widow, but no issue. The will had. been duly probated, and the widow had filed her dissent thereto. No one was appointed executor by the will. After the will had been duly probated, Philip W. Fulgham, one of the residuary legatees, applied for letters of administration, with the will annexed. The Avidow contested his right to administer. Under the evidence the only question presented is the authority of the court to appoint a non-resident. At one time, by statute, a person Avho was not an inhabitant of this state, was declared to be an “unfit person to serve as án executor.” — 1 Brick. Dig. 914; Rev. Code, §1976. There is no such statute in existence at this time. At common law, non-residence Would not disqualify or render incompetent a person from being appointed administrator or executor. — Bradley v. Harden, 73 Ala. 70; 1 Williams on Executors, §368. The testator not having appointed an executor, the residuary legatee was entitled to the appointment with the will annexed. — Code of 1896, §53.

The question as to what property is subject to administration and the authority and control of the administrator over the dower and distributive interest of the wife, she having dissented from the will, does not arise on this appeal, and will not be considered.

Affirmed.