54 Ala. 8 | Ala. | 1875
Until the statute of March 1, 1848, (Pamph. Acts 1847-8, p. 106), it was not within the power of a testator, by any direction in his will, to relieve his executor from the duty of giving bond and security, for the faithful performance of the duties enjoined on him by law. The statute was express and imperative, devolving on the court taking probate of the will, and granting letters testamentary, the duty of requiring the bond and security, payable and conditioned as required by law; and the testator had no dispensing power over the statute. The act of March 1, 1848, required the orphans court (to the jurisdiction of which the court of probate succeeded), to grant letters testamentary, without requiring bond and security, if the testator had so requested and provided in his last will. But if, at any time after such grant, any creditor, legatee, distributee, or heir, should make application setting forth the character of their claims, and that their interests were endangered for the want of bond and security, it was made the duty of the court to require such bond and security. And further, whenever it came to the knowledge of the court that the estate was likely to be wasted to the prejudice of heirs, the court could mero motu require bond and security to be given.
We do not doubt it was intended, substantially, to re-enact this statute in the Code of 1852, by § 1685 thereof, which now forms § 2005 of the Revised Code, without any change as to the parties on whose application the court of probate was charged with the duty of requiring bond and security. The change, in phraseology, does not indicate a legislative intent to lessen the parties, or change the character of interest they may have, who are entitled to the protective remedy against the directions of the will. It is in conformity to a purpose, apparent on nearly every page of the Code, to compress former statutes into as few words as possible.
The language of the section, as found in the Code, is broad enough to embrace creditors as parties who have the right to make the requisition. The whole law of administrations is founded on the theory that they have an interest, and the primary interest, in the estate. The law charges the whole
The court of probate sustained the demurrer on the sole ground that a creditor was not, under the statute, authorized to require of the executrix bond and security. In this the court erred. The petition ’is, however, defective, in not clearly and positively alleging the interest of the appellant. The debt, he claims, is described only as a judgment for about three hundred dollars. No petition by a creditor, under this statute, ought to be entertained which, does not set forth the debt on which his relation, as q. creditor, depends, with the precision and certainty essential in a declaration or complaint at law, in an action against the personal representative. The judgment should have been • correctly described according to its date and amount; the court in Avhich and against whom it was rendered, should have been distinctly averred. The court must see from the petition that the applicant has a debt prima faxñe a charge on the assets for administration. The executor or administrator must be informed of the pre
The judgment is reversed, and the cause is remanded.