Bivin v. Millsap

Decision Date08 June 1939
Docket Number1 Div. 68.
Citation189 So. 770,238 Ala. 136
PartiesBIVIN v. MILLSAP.
CourtAlabama Supreme Court

Appeal from Probate Court, Monroe County; M. Mc. Fountain, Judge.

Petition of Mary Bivin to revoke appointment of E. T. Millsap, as administrator of the estate of Tom Bivin, deceased (made on petition of Willie Bivin and others), and for appointment of J. D. Ratcliffe as such administrator. From a decree denying the petition, petitioner appeals.

Affirmed.

Barnett Bugg & Lee, of Monroeville, and Hamilton & Jones, of Evergreen, for appellant.

C. L Hybart, of Monroeville, for appellee.

ANDERSON Chief Justice.

The probate court, within less than forty days after the death of Tom Bivin, appointed the appellee, E. T. Millsap administrator of the estate of said Tom Bivin, deceased. The petition for the appointment was made by Willie Bivin claiming to be the widow of the decedent as well as his next of kin. The right to appointment can not be delegated to another to the exclusion of the person upon whom the statute next casts the right, Curtis v. Williams, 33 Ala. 570, but the petition to appoint Millsap can operate as a waiver of the claims of those making same of a prior right, if one they had. Childs v. Davis, 172 Ala. 266, 55 So. 540. While the appointment of Millsap was voidable, having been prematurely made, he being only of the fourth class mentioned in the statute, it was not void but subject to be revoked upon the application of those having a previous right. Curtis v. Williams, supra.

The petition in question to revoke the appointment of Millsap was made by one Mary Bivin claiming to be the lawful widow of the decedent, and, if she was, she was entitled to have the appointment of Millsap revoked, but not necessarily the right to delegate her right to Ratcliffe.

The statute, § 5742 of the Code of 1923, provides for the order in which administrators should be appointed and the widow is preferred in the first class, so the real question in this case was whether Willie or Mary was the lawful widow of the decedent and which said issue was submitted to the trial court who denied the petition and from said decree this appeal is prosecuted.

In order to review said decree, it must appear that the appellant excepted to same which fact does not appear. Taylor v. McElrath, 35 Ala. 330; Smith's Distributees v. King, 22 Ala. 558; Williams v Gunter, 28 Ala. 681; Gordon v. McLeod, 20 Ala. 242; Russell v....

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5 cases
  • Ogle v. Gordon
    • United States
    • Alabama Supreme Court
    • September 12, 1997
    ...198 (1948); Griffin v. Irwin, 246 Ala. 631, 21 So.2d 668 (1945); Calvert v. Beck, 240 Ala. 442, 199 So. 846 (1941); Bivin v. Millsap, 238 Ala. 136, 189 So. 770 (1939); Starlin v. Love, 237 Ala. 38, 185 So. 380 (1938); Johnston v. Pierson, 229 Ala. 85, 155 So. 695 (1934); Marcus v. McKee, 22......
  • Burnett v. Garrison, 6 Div. 547
    • United States
    • Alabama Supreme Court
    • August 30, 1954
    ...Ala. 38, 185 So. 380. Moreover, one occupying a preferential status cannot delegate his preferential status to another, Bivin v. Millsap, 238 Ala. 136, 189 So. 770; Curtis v. Williams, 33 Ala. 570; 33 C.J.S., Executors and Administrators, § 44, p. 940, (except in certain situations authoriz......
  • Hollis v. Crittenden
    • United States
    • Alabama Supreme Court
    • October 21, 1948
    ...must be reserved, and in the absence of such exception there is nothing here for consideration. The cited authorities are: Bivin v. Millsap, 238 Ala. 136, 189 So. 770; Russell v. McPherson, 202 Ala. 310, 80 So. Taylor v. McElrath, 35 Ala. 330; Williams v. Gunter, 28 Ala. 681; Smith's Distri......
  • Sharpe v. Booker, 3 Div. 732
    • United States
    • Alabama Supreme Court
    • November 10, 1955
    ...of the court thereon cannot be reviewed here because of the absence of a bill of exceptions. Terry v. Gresham, supra. See Bivin v. Millsap, 238 Ala. 136, 189 So. 770. And so we must look to the record to see whether we can pass on the question of the statute of limitations and we should obs......
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