Garrett v. Harrison

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 703
• Citation: 77 So. 712,201 Ala. 186
• Parties: GARRETT v. HARRISON et al.
• Court: Alabama Supreme Court

77 So. 712

201 Ala. 186

GARRETT v. HARRISON et al.

6 Div. 703

Supreme Court of Alabama

January 17, 1918

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

Petition of Nettie Garrett for the removal of F.J. Harrison and another as administrators of the estate of Will Garrett deceased. From a decree sustaining demurrers to the petition petitioner appeals. Affirmed.

The petitioner alleges:

That she is the lawful wife of Will Garrett, and that Harrison was appointed administrator less than 40 days after the death of decedent without the knowledge, procurement, or consent of petitioner; that she had no knowledge of the death of decedent until he had been dead more than 40 days; that she did not waive her right to preference as given her under the law to administer on said estate, within 40 days from the date of the death of deceased, nor did she consent that said F.J. Harrison be appointed as such administrator; that Harrison was guilty of fraud and misrepresentation in the procurement of the letters, in this, that in his petition for said letters he sets up under oath that one Fleeta Garrett was the widow of Will Garrett, and that the said Harrison was the brother-in-law of said Will Garrett, and that there were no other heirs of the distributees of the estate other than those named in his petition, all of which averments petitioner says are false, untrue, and fraudulent misrepresentations; that said letters were issued prematurely and improvidently for the above reasons, and for the further reason that there was no renunciation of the rights of preference to such letters by your petitioner, who was primarily entitled to the letters, and for the further reason that the application and administration of the estate by the said Harrison was not for the benefit of the estate or the heirs of the decedent, but was for the fraudulent purpose of appropriating funds of the said estate to their own use, and petitioner avers that neither Harrison nor Fleeta Garrett is related to said Will Garrett in any way, nor are they creditors of deceased, and petitioner shows that in a part of the petition of the said Harrison and Garrett for letters they aver that the claim against the Tennessee Coal, Iron &amp Railway Company, for damages arising out of the death of said decedent, had been settled by collusion and fraud by the said Harrison for the sum of $978.12 prior to the date of the filing of that petition, and prior to and without any authority of law for making settlement of said claim, all of which petitioner avers was in furtherance of and for the purpose of appropriating the funds for their own use.

The demurrers are that the petition fails to show that the petitioner made application for letters within 40 days from the death of decedent, and it fails to show any ground authorizing the removal of J.L. Harrison, and the third ground is that the alleged fraud is not set out with sufficient certainty.

Perry &amp Mims and G.P. Benton, all of Bessemer, for appellant.

J.L Drennen, of Birmingham, for ap...