Childs v. Davis

• Decision Date: 01 June 1911
• Citation: 55 So. 540,172 Ala. 266
• Parties: CHILDS v. DAVIS.
• Court: Alabama Supreme Court

55 So. 540

172 Ala. 266

CHILDS v. DAVIS.

Supreme Court of Alabama

June 1, 1911

Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge.

Application by Mathew Childs to set aside and annul letters of administration granted to G. W. Davis. From a judgment denying his petition, said Childs appeals. Affirmed.

By a petition filed on the 9th day of January, 1911, it is alleged that Arthur Rowland departed this life on the 20th day of December, 1910, leaving no last will and testament, and that G. W. Davis was a cousin and nearest relative in America that he was 21 years old, etc. On the same day the petition was filed, an order was entered granting letters of administration to G. W. Davis upon his making a bond, which bond was taken and approved the same day and the letters issued. On the 20th day of February, 1911, Mathew Childs filed a petition seeking to revoke and set aside the orders made and the letters heretofore issued upon the estate of said Arthur Rowland, alleging that the estate was indebted to him in the sum of about $50; the basis for the petition being the fraudulent misrepresentation made by Davis as to his relationship, and that the letters were premature and improvident, in that there was no renunciation by persons primarily entitled to letters of administration.

W Marvin Woodal, for appellant.

George Huddleston, for appellee.

ANDERSON J.

Section 2520 of the Code of 1907 fixes the order in which persons are entitled to letters of administration. There was no widow and the appellee, Davis, sought letters under the second class as next of kin, while the appellant claims to be a creditor under the third class. Section 2522 provides that unless the persons under the first three subdivisions of section 2520 apply for letters within 40 days after the death of the intestate is known, the persons so entitled must be held to have relinquished their right to administration. Letters were granted to Davis more than 15 days after the death of the intestate, and, if improvidently granted, this appellant cannot complain or have the same revoked, for the reason that he waived any right to administer by failing to apply for letters within 40 days, and thereby obtain a revocation of the appointment of the said Davis, and the pendency of the other administration, improvidently granted before the expiration of 40 days, does not excuse his failure, nor relieve him from its consequences. ...