This is а petition for removal of administratrix under the statute, and from the order or decree declining the same, the appeal is taken.
“Administration of an intestate’s estate must be granted to some one of the persons herein named, if willing to accept, and fit to serve, in the following оrder: 1. The husband or widow. 2. The next of kin entitled to share in the distribution of the estate. 3. The largest creditor of the intestate residing within this state. 4. Such other person as the judge of probate may appoint.”
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The right of the widow to letters of admin-1 istration on the deceased husband’s estate j over the other classes of persons enumerated in the statute has been the subject of discussion by this court. Dunham v. Roberts,
“The failure to make and return an inventory is one of the speсific grounds for removal expressed in the statute. Yet in the case of Hubbard v. Smith,45 Ala. 516 , it was held that when the failure to file an inventory was not willful, and no detriment had ensued to the estate, it was not cause of removal. We regard thаt decision as supporting the principle we have announced.”
In Hubbard v. Smith et al., supra, the observation is made that the administrator “ought to have filed an inventory, as any other administrator is required to do, and to havе made annual settlements. But his mere omission to do so, under the evidence, was not sufficient to justify his removal.” Analogous authority is Hightower v. Moore,
The causes for removal of an administrator and revocation of his letters are as follows:'
“1. Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties [or when from his conduct or character there is reason to believe that hе is not a suitable person to have the charge and control of the estate. General Laws, Reg. Sess. 1919, No. 37]. 2. Failure to make and return inventories or accounts of sales; failure to make settlements as -requirеd by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate. 3. The wasting, embezzlement, or any other maladministration of the estate. 4. The using of any of the funds of the estаte for his own benefit.” Code 1907, § 2566.
Subsection 2 of this statute is contained in preceding Codes — 1896, § 92; . 1886, § 2045; 1876, § 2386; 1867, § 2017; 1852, § 1696— without change. In each one the words “administrator or executor may be removed and his letters revoked for any of the follоwing causes” are as we have set out. Thus did the statute find its place in the present Code, with the construction or interpretation placed by this court on the words “failure to make and return inventories or accоunts of sales.” Crommelin v. Raoull, et al., supra; Oglesby v. Howard,
In Oglesby v. Howard, supra, the petition for removal was dated July 4, 1867, and the apiJointment of said administrator was of date November 25, 1863. From the evidence, it appeared that the administrator made one annual settlement in 1866; had never made return or inventory of said estate; that much of the funds of the estate was of “money” which said administrator had invested in “bonds” of the “Confederate Stаtes of America,” without an order or judgment of the court .authorizing him to so invest the moneys of the estate. The justice observed that, “Beside these, there were many other irregularities in the management and conduct оf said estate by said administrator, which cannot be sanctioned by law, without further explanation,” and that the failure to make and return an inventory as required by law, the failure to collect the hire of the slaves when it was еarned and capable of collection, or the investment after- the collection of the money thus obtained, without a proper order or judgment of some court, was a violation of the administerial duty and a devastavit; and for “both of these causes, unexplained as they are,” the probate court was held to have erred in its judgment refusing to remove the administrator as prayed in the petition.
It is noted the Oglesby Casе finds no parallel in the facts presented by the present record. Mrs. Willoughby, as a witness in her own behalf, made a fair and full disclosure of her administration of the effects of the estate, showed that her failure to file thе inventory within the time prescribed by statute (Code, §§ 2579, 2581, 2583), was not due to *140 fraud or willful wrong, but as a mere inadvertence on her part. It is manifest that the property belonging to the estate is in her possession and is subject to distribution, on final settlement, among those entitled according to law. Nothing has been lost to the estate by failure to file the inventory. An additional bond was required of her by the decree from which this appeal is taken, in a sufficient amount to compel proper administration of the estate and a due distribution of its effects.
The question, “Did you or not, on that inventory, list all of the property that you then had in hand belonging to Mr. O. D. Willoughby and that you then knew belоnged to his estate?” to which the witness answered, “To my best knowledge,” preceded the question, “State whether or not you did when you filed this inventory put in all the property you had in hand, and that you could then recollect,” tо which the witness answered “Yes.” Petitioners’ objection to the question was that it called for a recollection, for a purely mental operation. The authorities cited by petitioners are not in point. That of Stewart v. State,
Each of these cases is distinguishable from the questions propounded to Mrs. Willoughby against petitioners’ objection, and her answеrs thereto to which exceptions were reserved. The first was whether, as a matter of fact, she included in. the inventory, or instructed her attorney to so include, a list of all of decedent’s properties she then “hаd in hand,” or knew belonged to his estate. Her .answer was not of an undisclosed mental status, but of the fact that, to the best of her knowledge, she included in the inventory all of the trust property in question. She.was permitted, without objection, to explain, of the Caldwell and Patterson note for $1,600 that she did not have same before her when she made the inventory, but that she told her attorney, Mr. Young, when preparing the inventory, about it. It is true she qualified this statеment by the expression “I think,” yet no objection was reserved to this manner of the witness of giving her best recollection of the fact disclosed to the attorney. The second of the challenged questions was only a mоdified statement of what the witness had declared; that when she filed the inventory she put in all the estate’s property she “had in hand” or could remember to have possessed. It had been disclosed by the evidence such property consisted of long schedules of personalty, of many articles of different kinds; and the questions but elicited from her a statement of the fact that she had disclosed, or attempted to disclose to hеr counsel, all of the trust property of the estate of which she had knowledge, that they might be embraced in the inventory as required of her by the statutes, Code, §§ 2579-2585.
After due consideration of all the evidence and of the able argument of counsel in support of the petition for removal, we are of- *141 opinion that no error was committed in the rendition of the decree of the prohate court, from which appeal is taken.
Affirmed.
Notes
Ante, p. 41.