Breeding v. Breeding

• Decision Date: 20 December 1900
• Citation: 30 So. 881,128 Ala. 412
• Parties: BREEDING v. REEDING. [1]
• Court: Alabama Supreme Court

30 So. 881

128 Ala. 412

BREEDING v. REEDING. ^[1]

Supreme Court of Alabama

December 20, 1900

Appeal from probate court, Morgan county; William E. Skeggs, Judge.

Proceedings for the probate of the will of William Breeding. From a decree dismissing proponent's petition to have the probate court revoke letters of special administration granted by John W. Breeding, said proponent appeals. Affirmed.

William Breeding, a resident citizen of Morgan county, died on May 16, 1899, leaving an estate of real and personal property in said county. On May 18, 1899, Millard W. Breeding propounded for probate an alleged will and testament purported to have been executed by William Breeding, deceased, wherein said Millard W. Breeding was named as one of the legatees, and also as one of the executors of said will. Said application for probate was set for hearing on June 12, 1899. On that day, James Breeding, a full brother of the deceased, filed his contest of said will. While this contest was pending, to wit, on July 29, 1899, John M. Breeding, another full brother of William Breeding, deceased, made application to the probate court for the issuance to him of letters of special administration on the personal estate of William Breeding deceased. In the petition filed thereafter, the death and place of residence of William Breeding were averred, and it was further averred that he died seised and possessed of a real and personal estate, and the value of the personal estate was also averred. The names, residences, ages, and condition of the heirs and distributees of the estate were averred. The petition then continued as follows: "That the said William Breeding left no children; that your petitioner, being a full brother of said deceased, an inhabitant of this state above the age of 21 years, and in no respect disqualified under the law from serving as a special administrator, and believing that said estate should be immediately administered, to the end that the said property may be collected and preserved for those who shall appear to have legal right or interest therein, does therefore, by virtue of his right under the statute, pray that your honor will grant letters of special administration to John M Breeding on the estate of William Breeding, upon his entering into bond in such sum as is required by the statute, and with such security or securities as shall be approved by your honor." On July 29, 1899, the same day that the petition was filed, there was a decree rendered, which, after setting out the residence and death of William Breeding, and the pendency of the contest of his alleged will, and the existence of an estate consisting of real and personal property, then continued as follows: "That it is necessary to appoint a special administrator to collect and preserve the assets of said deceased, and no person having appeared to oppose the granting of letters of administration to the said John M. Breeding, or to show cause why the prayer of said petitioner should not be granted, it is ordered that the same be granted, provided that the said John M. Breeding first file in this court his bond in the penal sum of fifteen hundred dollars, conditioned and payable according to the statute in such cases made and provided, with such security or securities as may be approved by the court." This decree, after further reciting that John M. Breeding had presented a bond as required by said court, and that the same had been approved, ordered that special letters of administration on the estate of the deceased be granted to said John M. Breeding. On July 31, 1899, the said Millard W Breeding filed his petition in the probate court, praying for a revocation of the said letters of special administration issued to John M. Breeding. In this petition Millard W Breeding averred that he "was the natural son of William Breeding, deceased." After averring the issuance of the special letters of administration to John M. Breeding, the petition then continued as follows: "Said letters of administration were granted upon statements made to your honor that are entirely false, and were granted and issued without knowledge or notice to your petitioner, although it is and was well known to the petitioner therein that your orator was and is a son of said deceased, one of his legatees, and interested in the distribution of said estate. Your orator had no hearing before your honor about the granting of said letters of administration to said John M Breeding. Your orator humbly prays that said letters of administration issued to the said John M. Breeding be revoked upon the following grounds: (1) Orator had no notice of the application for said letters, nor hearing upon the same, or notice of the issuance thereof. Orator avers that he is the proponent of the last will and testament of William Breeding deceased, which is now pending in your honor's court, which was well known to said John M. Breeding at the time he applied for letters of administration. (2) No sufficient facts were set forth authorizing the grant of said letters of administration to said John M. Breeding. (3) The alleged facts, as set forth in the petition of said John M. Breeding praying for the grant...