Bell v. Fulgham

• Decision Date: 14 November 1918
• Docket Number: 2 Div. 676
• Citation: 80 So. 39,202 Ala. 217
• Parties: BELL v. FULGHAM.
• Court: Alabama Supreme Court

80 So. 39

202 Ala. 217

BELL v. FULGHAM.

2 Div. 676

Supreme Court of Alabama

November 14, 1918

Appeal from Probate Court, Bibb County; W.J. Nicholson, Judge.

John R Fulgham petitioned for administration of the estate of Marion Bell, deceased, his half-brother, and qualified and made bond on May 4, 1918, when letters were issued. May 15, 1918, J.M Bell petitioned as the father of deceased for letters of administration on the estate, qualified, and later asked for the recall of the letters issued to J.R. Fulgham, and to have himself appointed instead. From denial of his petition, he appeals. Reversed and remanded.

S.D. &amp C.D. Logan, of Centerville, for appellant.

Lavender & Thompson, of Centerville, for appellee.

SAYRE J.

Appellant cannot read or write; but he is a man of good intelligence, accustomed to transact his own affairs, and, we infer from the evidence shown in the bill of exceptions, has a memory for the details of past transactions superior to that of the man of average book learning. It cannot be said, therefore, that he is incompetent to discharge the duties incident to the administration of an estate by reason of a want of understanding. It is not suggested that he is incompetent for any other reason. Under the statute, section 2520 of the Code, appellant, father of deceased, was entitled to the administration in preference to appellee, who is a half-brother. Brown v. Hay, 1 Stew. & P. 102. Section 2508 does not set down illiteracy as a cause of disqualification, and, under the ruling of this court ( Crommelin v. Raoull, 169 Ala. 413, 53 So. 745), one who is entitled to preference under the statute may not be disqualified except for some ground specified in the statute. Appellant's petition for the recall of the letters improvidently granted to appellee and for his own appointment was a direct attack upon the previous appointment and, under the evidence, should have been granted, and appellant should have been appointed instead.

It results also from the ruling in Crommelin v. Raoull, noted above, that the trial court erred in the several rulings on the admission of testimony to which exceptions were duly reserved. According to the ruling in that case, the court had no discretion to refuse the appointment of appellant; it not appearing that he was disqualified on any ground specified in the statute, and no waiver of his right being shown against him. The testimony admitted by the court, having reference to personal differences between appellant and deceased prior to the death of the latter, could have had no tendency to establish any statutory ground of disqualification. Its admission was error therefore. The assignments of error...