7 Div. 443.
June 26, 1924. Rehearing Denied October 16, 1924.
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
Charles F. Douglas, of Anniston, for appellants.
After the expiration of 40 days from the death of decedent, there is no priority of right to act as administrator, and it is the duty of the probate court to appoint a person competent and not objectionable to the heirs. Code 1907, §§ 2520-2522; Acts 1919, p. 40; Bingham v: Crenshaw, 34 Ala. 683; Kidd v. Bates, 120 Ala. 79, 23 So. 735, 41 L.R.A. 154, 74 Am. St. Rep. 17; Davis v. Swearingen, 56 Ala. 31; Id., 56 Ala. 540; Bell v. Fulgham, 202 Ala. 217, 80 South, 39; Forrester v. Forrester's Adm'rs, 37 Ala. 398; 11 R. C. L. 49; Swope v. Swope, 173 Ala. 157, 55 So. 418, Ann. Cas. 1914A, 937. Appellee, under the circumstances of the case, should not be appointed administrator. Gibbons v Gibbons, 205 Ala. 636, 88 So. 833; Seale v. Chambliss, 35 Ala. 19; Shipman v. Furniss, 69 Ala. 564, 44 Am. Rep. 528; Deeble v. Alerton, 58 Colo. 166, 143 P. 1096, Ann. Cas. 1916C, 863; Wallen v. Wallen, 107 Va. 131, 57 S.E. 596; Shailer v. Bumstead, 99 Mass. 112; 23 C. J. 1047.
Hugh Reed, of Centre, for appellee.
The grounds of disqualification enumerated in Code, § 2508, are exclusive. Crommelin v. Raoull, 169 Ala. 413, 53 So. 745; Bell v. Fulgham, 202 Ala. 217, 80 So. 39. Adverse or antagonistic interest to the heirs will not disqualify. Willoughby v. Willoughby, 203 Ala. 138, 82 So. 168. Appointment of the administrator is justified by the exercise of discriminating discretion with which the probate judge is clothed. Phillips v. Peteet, 35 Ala. 696; Henderson v. Henderson's Adm'r, 67 Ala. 519; Harwood v. Harper, 54 Ala. 659; Kirksey v. Kirksey, 41 Ala. 626.
S. B. Casey, who was appointed administrator of the estate of his deceased father, and whose appointment is here contested as improper, made his application for appointment after the lapse of 40 days; and it is conceded, of course, that the statutory preference based on relationship to the decedent was thereby lost, and that, there being no other application within the 40 days, the appointment of S. B. Casey is referable to subdivision 4 of section 2520 of the Code: "Such other person as the judge of probate may appoint."
But it seems to have been settled long ago that, notwithstanding a preferred person's loss, by delay, of his statutory right of preference, he is nevertheless to be preferred as the proper grantee of letters over an applicant who has never been in the same or a prior preferred class; provided, of course, he is otherwise fit to serve. Davis v. Swearingen, 56 Ala. 539, 541. And when the probate judge appoints under subdivision 4 of the statute, he is clothed with "large discretionary powers" (Phillips v. Peteet, 35 Ala. 696); or as stated in Davis v. Swearingen, 56 Ala. 539, "with a large and liberal discretion."
The objections urged by the appellant heirs against the appointment of the appellee, S. B. Casey, are: (1) That he is largely indebted to the estate, having given his promissory note to decedent for $5,000; (2) that he claims three credits thereon aggregating $2,775, which were improperly secured by undue influence on the decedent, without actual payment of such amounts; and (3) that he is very friendly, if not unduly beholden, to a brother-in-law, and two brothers, who are all substantially indebted to the estate, and who have advocated and supported his appointment as administrator.
The argument is that these conditions and circumstances indicate such a clash of interests between the appointee and the other heirs as would prevent a just and beneficial administration of the estate, and result in the loss of assets, or at least imperil their collection and distribution.
The matters in question are proper for the consideration of the probate judge in the exercise of his discretion in selecting the grantee of letters, but they are not grounds of disqualification. Kidd v. Bates, 120 Ala. 79, 87, 23 So. 735, 41 L.R.A. 154, 74 Am. St. Rep. 17. That case involved the disqualifications of an executor, but the rule is the same for administrators. Crommelin v. Raoull, 169 Ala. 413, 53 So. 745.
The implications of probable infidelity and dereliction on the part of S. B. Casey as administrator are but dubiously supported by the evidence, and the finding of the probate court, confirmed by the judgment of the circuit court, on testimony taken ore tenus, is not to be disturbed in such a case. Kirksey v Kirksey, 41 Ala. 626 (7); Henderson v. Henderson, 67 Ala. 519; Ray v. Watkins, 203 Ala. 683, 85 So. 25; Goldsmith v. Gates, 205 Ala. 632, 88 So. 861.
If in the course of the administration of the estate by this appointee the dangers apprehended by appellants should arise or become apparent, the statute (Code, § 2566), providing for removal on various grounds, may afford the necessary protection or relief.
We are unwilling to say that the probate judge abused his discretion in the appointment of S. B. Casey, and the order and judgment appealed from will be affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.