Castleberry v. Hollingsworth

• Decision Date: 13 January 1927
• Docket Number: 7 Div. 668
• Citation: 215 Ala. 445,111 So. 35
• Parties: CASTLEBERRY v. HOLLINGSWORTH.
• Court: Alabama Supreme Court

111 So. 35

215 Ala. 445

CASTLEBERRY v. HOLLINGSWORTH.

7 Div. 668

Supreme Court of Alabama

January 13, 1927

Appeal from Circuit Court, Talladega County; R.B. Carr, Judge.

Petition in equity by Joseph Castleberry for removal of W.L Hollingsworth as administrator of the estate of William Castleberry, deceased. From a decree denying the relief petitioner appeals. Affirmed.

Rutherford Lapsley, of Anniston, for appellant.

Merrill Field & Allen, of Anniston, for appellee.

GARDNER J.

One W.L. Hollingsworth was on December 7, 1925, duly appointed by the probate court of Talladega county administrator of the estate of William Castleberry, who died a resident of said county on November 7, 1925. The administration of said estate was by appropriate order removed into the circuit court of Talladega county, where was heard and considered the petition of appellant for removal of said Hollingsworth as such administrator, and a decree rendered denying the relief sought and dismissing the petition, from which decree this appeal is prosecuted.

Petitioner, as next of kin of decedent entitled to share in the distribution of his estate, was to be preferred in the matter of the administration of said estate over Hollingsworth, who was no relation (section 5742, Code of 1923), but waived any such preferential right by failing to apply for letters of administration within 40 days after the death of the intestate became known (section 5744, Code of 1923), and the fact that Hollingsworth was appointed before the expiration of said 40 days can, under these circumstances, be of no avail to petitioner (Child v. Davis, 172 Ala. 266, 55 So. 540).

It appears that Hollingsworth is also one of the administrators with the will annexed of the estate of Ellen M. Bramlett in course of administration in the probate court of Calhoun county, and that William Castleberry was the chief beneficiary under the will of said Ellen Bramlett. While it is charged in the petition that Hollingsworth is also a beneficiary under said will, and that his personal interests are adverse to the heirs of William Castleberry, deceased, yet this is denied in the answer, and no proof was offered to establish these allegations, which may therefore be laid out of view.

It is further averted that a controversy exists between the heirs of William Castleberry and the Bramlett estate, and the foundation for the petition for removal appears to rest upon this conflict of interest resulting in a conflict of duty on the part of Hollingsworth, as one of the administrators of the Bramlett estate, to see that proper accounting is had to the administrator of the Castleberry estate. The argument is advanced that, upon settlement of the Castleberry estate, Hollingsworth could not recover of himself a decree against himself, as administrator of the Bramlett estate, as the decree would be void under the following authorities: Hagood v. Goff, 208 Ala. 642, 95 So. 21; Hays v. Cockrell, 41 Ala. 75; Martin v. Atkinson, 108 Ala. 314, 18 So. 888.

The court held, however, in Randle v. Carter, 62 Ala. 95, that a conflict of interest was not ground for removal, and in that connection said:

"It is not necessary to inquire whether in any case, the court of chancery can remove an administrator deriving his authority from the grant of another court of exclusive jurisdiction. If the court has the power, it is only an extreme case, which will justify its exercise. The statutes have committed the power to remove executors or administrators to the court of probate granting the letters, and have carefully defined the causes of removal. The court of chancery can protect its suitors against the delinquency of executors or

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