Ward v. Cameron's Adm'rs

37 Ala. 691 | Ala. | 1861

A. J. WALKER, C. J.

rAn application was- made by/the appellants, for-the .repeal of the letters of administra- - tion of the appell'ees. - The parties making the motion filed a petition, -which is set out in the record. In the petition they claim,-to.be the largest creditors of the estate. The entry .of tbe judge, overruling the petition, does not set‘out all tile evidence which was adduced on the trial, and there is. no hill of exceptions. Wé have, .therefore/». presented the case, which has been unfortunately of very frequent occurrence, where the correctness of the ruling of the court below depends .upon the proof, and we do not know what the'proof was. In such case, we must presume in favor of the correctness of the j udgment, and award an affirmance, — Morgan v. Morgan, 35 Ala. 303 ; Taylor v. McElrath, ib. 330 ; Southern Ins. Co. v. Holcombe, ib. 327; Rupert v. Elston, ib. 79.

[2.J It is not shown that the appellants proved that they were the largest creditors of the estate, or, indeed, that they were creditors at all. We have decided, that where an administrator was appointed'within forty days, in contravention of the order of preference prescribed by the statute,the.largest creditor of-the estate.might proceed to obtain a revocation of the administration. — Curtis v. Williams, 33 Ala. 570 ; Curtis v. Burt, 34 ib. 729. But, unless the petitioner was a creditor of the estate, he would have no right to move for a revocation of an irregular appointment, and no ground for complaint -.that the court overruled his .motion. As it does not appear that the petitioners were -creditors, we can ..not affirm that there was no sufficient.reason,for.the actiomof the court.

Affirmed.