131 Ala. 578 | Ala. | 1901
This appeal is prosecuted from a decree of the probate court denying the petition of appellants seeking a revocation of letters testamentary issued to Mrs. Pruett. The will named appellants as executors
“The common law traced the title and authority of an executor to the will. Without regard to the time of its probate, his title and authority were by relation referred to the death of the testator. The executor was regarded, not as an officer of the court of probate, but rather as a private trustee, nominated and appointed hv the testator, and charged with such duties as the testator declared. Probate was essential only to establish, by judicial sentence, his right and authority. Before proliate he could do nearly all the acts he could rightfully do after probate, except the institution and prosecution of suits, in which profert of probate and letters testamentry was necessary.” — Brocks’ Admr. v. Frank, 51 Ala. 91, 92. So, also, in some jurisdictions it is a rule of the common law that where there are several executors and one renounces and the others prove the will, the renunciation is not binding on him ®o long as one or more, of his co-executors continue in office, but he who renounced may at any time afterwards come in and administer. — 11 Am. & Eng. Enc. .Law (2d ed.), 757. In others, the rule seems to be this: In the absence of statutory regulation to the contrary, an executor named in a will is not bound to take probate when hiss CO-executors do; he may come in at any time after-wards and take letters testamentary; and even should he renounce, though he cannot in that case take letters testamentary during the life of such as prove the will, yet should he survive them, he is entitled'to administration of the estate and to letters testamentary. — Judson v. Gibbins, 5 Wend. 224; 1 Woeraer on Administration, § 234. These rules clearly have application only in those jurisdictions where the common law prevails, that an executor derives his authority exclusively from the will and not from his letters testamentary, and have no application in this jurisdiction, where the settled rule is, that letters! testamentary must be granted, be
Sections 52 and 53 of the Code required Mrs. Pruett to apply for letters within thirty days after probate of the will, and her failure to do so lost to her the right to have letters as against her co-executors who did nmlce their application within the time prescribed. In other words;, her failure to exercise the right conferred by tin-' provisions of these statutes and the exercise of that right by the petitioners, conferred upon the latter the exclusive right to letters testamentary; and so long as the letters issued to the petitioners remained unrevoked, the conrt was without jurisdiction to grant the letters to Mips. Pruett. — Matthews v. Daughette, 27 Ala. 273; Bean v. Chapman, 73 Ala. 140; Nelson v. Boynton, 54 Ala. 368; Coltart v. Allen, 40 Ala. 155; Gray v. Cruise, 36 Ala. 559. This being true, the grant of letters to her was void and the petition should have been granted and her letters revoked. The grant of letters being void, it was the duty of the probate court to revoke them. Having the inherent' jurisdiction to make the records speak the truth, it- unquestionably had the right to hear and determine and grant the petition in this case, although it be conceded (a question we. do not here decide) that the city court had assumed jurisdiction of the administration of the estate.
A decree will be here entered revoking the letters testamentary to Mrs. Pruett and reversing the decree of the probate court denying the petition.
Reversed and -rendered.
