Hightower v. Moore

46 Ala. 466 | Ala. | 1871

B. F. SAFFOLD, J.

The appellants petitioned the probate court for the removal of the appellee from the administration of the estate of Matthew Matthews, deceased.

They alleged, as grounds of removal — 1st. That he had not made any settlement since December, 1865. 2d. That he had failed to make settlements. 3d. That he had sold property of the estate and taken Confederate currency in payment. On the hearing, the court dismissed the application.

The last cause of removal alleged by the petition in 1869 can not be regarded as sufficient, inasmuch as the acts complained of were done four years before, and can not be repeated. Besides, the time when they were done, and the attendant circumstances, do not admit of the inference that the administrator was inefficient or disposed to waste the property.

There appears to have been a settlement of the estate in 1865, at which decrees were rendered in favor of the distributees against the administrator, and were satisfied by him. The estate seems to have been fully administered, though perhaps not entirely distributed. The administrator has been negligent about making his settlements, but there has not been much to do since his last settlement, and he has not been required to make settlements by either the court or the distributees. The record shows that in December, 1865, he filed his accounts for a final settlement, and that a day was appointed to hear it, but it does not show what was done in the matter.

The statement of what the administrator would swear, if' present, admitted as evidence by counsel, tended to prove a reason why he had not made regular settlements, but it was contradicted by the evidence of the probate judge himself, and of course had no influence in his decree.

We do not think sufficient ground for the removal was shown.

The decree is affirmed.