Phillips v. Peteet, 35 Ala. 696

Phillips v. Peteet

35 Ala. 696 | Ala. | 1860

STONE, J.

The record in this case informs ns, that Nancy Phillips died intestate, leaving assets in the county of Macon. It does not inform us, that she was an inhabitant of another State. Indulging, as it is our duty to do, all reasonable intendments in favor of the correct ruling of the probate court, it is, at least, proper that we should presume she had her residence where her property was, if, by that presumption, the judgment of that court will be vindicated. — Shep. Digest, 437, §§ 29, 30, 31.

[2.] According to the rule above declared, it is manifest that Mr. Peteet stands to Miss Phillips, his intestate granddaughter, in the relation of “ next of kin entitled to share in the distribution of her estatewhile Mr. Phillips, the petitioner, occupies no such relation. — Code, §§ 1572, 1581, 1575; 2 Kent’s Com., marg. p. 422-3.

The Code expresses certain legal priorities in the claim of administration: 1st, the husband, or widow ; 2d, the next of kin, entitled to share in the distribution of the estate; 3d, the largest creditor of the intestate, residing within the State. — Code, § 1668, subd. 1, 2, 3. We have shown above that Mr. Phillips does not come within the second of these subdivisions. It requires no argument to prove that he has not shown himself to be within the 1st or 3d.

[3.] The remaining rule, for the appointment of administrators, clothes the judge of probate with large discretionary powers. Its language is, “such other personas the judge of probate may appoint.” — Subd. 4. Under this clause, while we concede that the probate coui’t might commit a reversible error in the appointment of an administrator, (see section 1658; Williams v. McConico, 27 Ala. 572; Dunham v. Roberts, ib. 701;) yet, for failing to appoint some other suitable person, no appeal can be prosecuted. — Brennan v. Harris, 20 Ala. 185. That court must be left free and untrammeled in the selection of the person to fill the trust, uuless the person appointed do not possess the requisite qualifications. — See Curtis v. Williams, 33 Ala. 570.

Had Mr. Phillips been appointed administrator of the estate of his niece, we are not prepared to say there is *698anything in this record, which would require us to reverse that order. He was not so appointed, and he has failed to prove that he had a legal priority in the matter of the appointment.

The judgment of the probate court is affirmed.