Mitchell v. Duncan

94 Ala. 192 | Ala. | 1891

WALKER, J.

— Charles E. Harris died on the 5th day of December, 1889, leaving property in Madison county in this State. On the 13th day of the same month certain persons, describing themselves as heirs-at-law of said decedent, filed a petition in the Probate Court of said county, praying that letters of administration upon the estate oí the decedent be issued to Ralph Mitchell, who was one of the petitioners. So far as the record discloses, it does not appear that, any order was made upon that petition. On the 15th day of March, 1890, Sallie W; Carroll, who had joined in the first petition, filed another petition in her own name alone, asking that William P. Duncan be appointed administrator of the estate of said decedent. On the 4th of April, 1890, Duncan was appointed administrator. On the 19th day of June thereafter, Ralph Mitchell and others, describing themselves as heirs-at-law, filed another petition, praying that the letters of administration issued to Duncan be revoked and recalled, and that letters of administration be granted to Ralph Mitchell in accordance with the application of December 13th, 1889, to this effect. On July 8th, 1890, an order was made overruling and denying this last petition. An appeal from that order was taken, January 9th, 1891. A motion has been made in behalf of the appellees to dismiss the appeal, because it was not taken within thirty days after the date of the order or decree sought to be reviewed.

The contention of the appellants is, that Duncan, who did not belong to either of the classes of persons entitled to priority in the grant of administration, should not have been appointed administrator while the application for the appointment of Mitchell, who is an heir-at-law of the decedent, waspending in that court, and had not been disposed oí — that application having been made within forty days after the death of the intestate. — Code of 1886, 2014 and 2016. The claim is, that the right of preference asserted by that application had not been abandoned, but was duty maintained, and that it should not have been ignored. The purpose in seeking the revocation of the letters issued to Duncan was to get rid of an obstacle in the way of the application for Mitchell’s appointment. The claim that Mitchell was entitled to be appointed administrator in preference to Duncan was the substantial matter of controversy. The relief sought was the recognition and enforcement of that claim. The contest was between the conflicting claims to the administration. The disposition of the matter depended entirely upon the recognition of the one or the other of those claims. In making the order appealed from, the Probate Court was passing upon an application to administer upon an estate. The appeal from a decree or order made on such an application must be taken within thirty days from the hearing and decision of the same, unless the application was denied because of the unfitness of the applicant, in which case the appeal must be taken in ten days. — Code of 1886, § 3641, sub-div. 2. The appeal in this case not having been taken "within the time limited by the statute, the motion to dismiss must be granted.