Harris v. Dillard

| Ala. | Jun 15, 1857

STONE, J. —

Ve do not think the probate court of Madison erred in removing the executor in this case. The demurrer to the petition admitted the truth of its aver-ments. One of those admitted averments was, that the executor, without making settlement, had removed from the State of Alabama, and was, at the time of the exhibition of the petition, and for ten years bad been, a nonresident. Under the authority of Speight v. Knight, 11 Ala. 461" court="Ala." date_filed="1847-01-15" href="https://app.midpage.ai/document/speight-v-knight-6503227?utm_source=webapp" opinion_id="6503227">11 Ala. 461, this uncontroverted fact authorized the probate court of Madison to remove him, independent of the authority conferred by section 1696 of the Code.

But we think the authority was also conferred by the Code, (§ 1696.) The spirit of that section is, that an executor or administrator, becoming non-resident, maybe removed from the trust. It cannot be material that the act of removal shall have taken place after the Code went into effect. Non-residonce is a fact continuous in its character. Each and every day after such non-residence commenced was but a renewal of the cause of removal; and we think, under all fair construction, the fact of non-residence gave the same right to remove him from the trust, as if the act of removal had taken place after the Code became operative.

There is also another reason why this appeal cannot be maintained. It was taken under section 1888, sub-division 3, of the Code. Section 1891 declares, that such appeal must be tried on a bill of exceptions. There is in this record no bill of exceptions; and, under the authority of Turner and Wife. v. Dawson, at the present term, the appeal must be dismissed.

Judgment accordingly.