Burnett v. Garrison, 6 Div. 547

• Decision Date: 30 August 1954
• Docket Number: 6 Div. 547
• Citation: 75 So.2d 144,261 Ala. 622
• Parties: Lena BURNETT v. Robert C. GARRISON.
• Court: Alabama Supreme Court

Page 144

75 So.2d 144

261 Ala. 622

Lena BURNETT v. Robert C. GARRISON.

6 Div. 547.

Supreme Court of Alabama.

Aug. 30, 1954.

Rehearing Denied Nov. 4, 1954.

D. G. Ewing, Earl McBee, Birmingham, for appellant.

J. L. Drennen, Birmingham, for appellee.

CLAYTON, Justice.

This is an appeal with bill of exceptions from a decree of the Probate Court of Jefferson County on conflicting petitions for letters of administration on the estate of Mary Jane Speed who died in said county on January 2, 1953. On January 7, 1953, Lena Burnett, appellant, filed her petition for letters of administration in which she described herself as friend and former guardian of decedent. Robert C. Garrison, appellee, on January 8, 1953, filed his petition in which he referred to himself as General County Administrator of Jefferson County. It is admitted that the next of kin of decedent are five second cousins who are non-residents of Alabama. The estate of Mary Jane Speed consists of some $2,500 in cash in the hands of said Lena Burnett, as guardian, and real estate in Jefferson County valued at about $15,000.

On the day set for hearing both petitions, Robert C. Garrison filed a substituted petition which alleged that he was nominated by all the heirs of the decedent, and Lena Burnett filed a substituted petition in which she described herself as 'being a creditor of said estate and a friend of said deceased.' On the hearing, the Probate Judge took testimony in support of, and in opposition to, both petitions, and after taking the matter under advisement, made a decree on February 2, 1953, finding that Lena Burnett was not a creditor of said estate, denying her petition and granting the petition of Robert C. Garrison.

It is undisputed that Mary Jane Speed was adjudicated non compos mentis on or about October 2, 1950, from which time Tom Reese was her legal guardian until about August 28, 1951, when appellant was appointed her guardian and continued to be such until the death of Mrs. Speed. Both appellant and appellee are residents of Alabama.

The applicable statutes to be considered by us are sections 81 and 69 of Title 61 of the Code of Alabama, 1940, which read:

' § 81. Order of grant of administration.--Administration of an intestate's estate must be granted to someone of the persons herein named if willing to accept and satisfactory to serve in the following order: 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 estate residing in this state. 4. Such other person as the judge of probate may appoint. (1931, p. 649; 1936, Ex.Sess., p. 29.)'

' § 69. Persons disqualified as executors or administrators.--No person must be deemed a fit person to serve as executor who is under the age of twenty-one years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding is incompetent to discharge the duties of the trust. Nor shall any non-resident of the state be appointed as administrator except he be at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction.'

The provisions of § 69 apply to administrators. Griffin v. Irwin, 246 Ala. 631, 633, 21 So.2d 668, 158 A.L.R. 288; Crommelin v. Raoul, 169 Ala. 413, 53 So. 745; Williams v. McConico, 27 Ala. 572.

The effect of the decree of the Probate Court was to find that appellant was not entitled to a preference under subdiv. 3, of § 81, and then to make appointment of appellee as administrator under subdiv. 4, of said section.

It is clear that if appellant occupied a preferred status under § 81, and did not suffer any disqualifying disability as provided by § 69, she was legally entitled to the appointment and the cause should be reversed on that account. For the Probate Court has no discretion in respect to enforcing the preferential right of one to serve as administrator if he is a fit person. It may not weigh the respective qualifications of two applicants and choose between them if one of them has a statutory preference. Hollis v. Crittenden, 251 Ala. 320, 37 So.2d 193; Loeb v. Callaway, 250 Ala. 524, 35 So.2d 198; Griffin v. Irwin, supra; Calvert v. Beck, 240 Ala. 442, 199 So. 846.

'These enumerated grounds of unfitness are held to be exclusive and disqualification of an applicant to administer an estate who is otherwise entitled to preference, not based on one of these specified grounds, is not authorized. Crommelin v. Raoul, 169 Ala. 413, 53 So. 745; Nichols v. Smith, 186 Ala. 587, 65 So. 30; Bell v. Fulgham, 202 Ala. 217, 80 So. 39; Marcus v. McKee, 227 Ala. 577, 151 So. 456.' Griffin v. Irwin, supra. [246 Ala. 631, 21 So.2d 669.]

The substitution of the word 'satisfactory' in the Act of 1936, now § 81 of Tit. 61 of the Code, for the word 'fit' in the older Codes made no change in the meaning of the statute. Moore v. Strickland, 246 Ala. 624, 21 So.2d 665. While appellee offered evidence in the court below to show that his appointment would be pleasing to the next of kin by introducing their letters and telegrams attempting to nominate him for appointment, these could not give him any preferred status as defined by § 81 for two reasons. The next of kin are all non-residents of Alabama, and not only occupy no preferential position, but are themselves disqualified from serving as administrators. Tit. 61, § 69, Code of 1940. Starlin v. Love, 237 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 authorized by statute which have no application here. See § 84, Tit. 61, Code of 1940.)

So the only effect that could have resulted from this evidence was to apprise the court of the wishes of the next of kin for its consideration in the event that no person having a preferential status under the statute should apply for letters of administration, and the fact that the next of kin desired the appointment of appellee as administrator was a factor which the court might consider in the event it should find no applicant entitled to a statutory preference. 33 C.J.S., Executors and Administrators, § 44, p. 940.

Appellee does not on appeal, nor did he in the court below, claim any preferred status. His position here and there was that neither he nor appellant held a preferential position within the terms of the statute, and that the Probate Court could in its discretion, under the fourth subdivision of § 81, appoint appellant, appellee, or any other qualified person as administrator.

Appellant's assignments of error can be summarized as two broad propositions: First, she asserts that she has proven sufficient facts by the testimony to place her in a preferred position by reason of being a creditor of the estate, and the Probate Court on that account could not properly have denied her the appointment. Second, if the evidence did not adequately prove her preferred category, the court committed error in sustaining appellee's objections to questions directed to her as a witness designed to elicit her own personal testimony which would have proven her entitled to such preferential appointment.

We consider the first proposition. Appellant's amended petition refers to her as 'your petitioner being a creditor of said estate and a friend of said deceased, an inhabitant of this state, above the age of twenty-one years, and in no respects disqualified under the law from serving as administrator * * *.'

The question was raised on the hearing and assigned as error on appeal that averments in the petition are not in the language of § 81 of Title 61 of the Code, nor do they substantially aver facts to place appellee within one of the four subdivisions of said section.

We are familiar with the fact that strictness of pleading is required in the petition in some jurisdictions, as illustrated by the following:

'A petition for the appointment of an administrator should affirmatively show the existence of jurisdiction to make the appointment sought, and should allege all the necessary facts, such as * * * the right of the person who seeks administration, as next of kin, creditor, or otherwise, to be appointed.

'Details not necessary to jurisdiction, such as the exact value of the estate, need not be averred, * * *.' 33 C.J.S., Executors and Administrators, § 55, pp. 962, 963, but said text continues:

'As jurisdictional facts and their correctness may be determined at the hearing, a misnomer or inaccuracy in the petition, or even the omission of essential allegations, is often indulgently treated; * * *.' Id., § 55, p. 963; State ex rel. Campbell v. Chapman, 145 Fla. 647, 1 So.2d 278; 23 C.J. p. 1060, note 86.

In view of our own holdings that a petition is not a necessary prerequisite to the validity of an appointment of an administrator, we hold that strictness of pleading in the petition is not required in this state. Breeding v. Breeding, 128 Ala. 412, 30 So. 881; Davis v. Swearingen, 56 Ala. 31; State ex rel. Campbell v. Chapman, supra; 23 C.J. 1060; 33 C.J.S., Executors and Administrators, § 55, supra.

We are not faced in the instant case with any question of disqualification of one who admittedly occupies a preferential position. The trial court has decreed that appellant is not a creditor and has made appointment under subdivision 4 of § 81. Both petitions were filed within 40 days after the death of decedent became known, so the time of filing application for letters is not a factor in the instant case.

Mrs. Burnett was no relation to Mrs. Speed. The theory of her case is that she rendered services to the deceased for a number of years before her death, for which she has a claim against the estate on the quantum meruit, for the...