Johnston v. Pierson

• Decision Date: 21 June 1934
• Docket Number: 4 Div. 759.
• Citation: 155 So. 695,229 Ala. 85
• Parties: JOHNSTON v. PIERSON.
• Court: Alabama Supreme Court

155 So. 695

229 Ala. 85

JOHNSTON v. PIERSON.

4 Div. 759.

Supreme Court of Alabama

June 21, 1934

Appeal from Probate Court, Coffee County; J. A. Carnley, Judge.

Petition of J. A. Johnston to revoke letters of administration issued to G. F. Pierson on the estate of Morgan P. Adams, deceased and for appointment of petitioner in his stead. From a decree dismissing the petition, petitioner appeals.

Reversed rendered, and remanded, with instructions.

Grant &amp Orme, of Troy, and J. C. Yarbrough, of Enterprise, for appellant.

J. W Hicks, of Enterprise, A. K. Merrill, of Dothan, and J. C. Fleming, of Elba, for appellee.

FOSTER Justice.

The record shows that Morgan P. Adams died intestate September 4, 1933, without a widow, descendants, or parents. His distributees and heirs consisted of two uncles and some cousins, one or more.

Within forty days after his death, one of the uncles, appellant, J. A. Johnston, and also the husband (G. F. Pierson) of a cousin, each separately, filed a petition for letters of administration. On the 26th of September, the probate judge appointed G. F. Pierson, but took no action as shown by the record on the petition of J. A. Johnston.

On the 28th of September, J. A. Johnston filed a petition to revoke the letters granted to G. F. Pierson, on the ground that petitioner had a prior right as the next of kin entitled to share in the distribution of the estate under section 5742, Code, as amended by Gen. Acts 1931, p. 649. That petition was heard on October 20th, when evidence was taken, which is practically without dispute. The court made a decree on that day denying the petition to revoke. On the same day, petitioner gave security for costs of an appeal to this court from the decree denying that petition. Appellee moves to dismiss the appeal because not taken from the decree of September 26th, appointing G. F. Pierson, as administrator, and more than thirty days have now expired since the rendition of that decree.

We think that certainly one fallacy of the contention made by appellee is in assuming that this appellant had the right to appeal from that decree, conceding that in fact the court had then considered the same matters determined on the petition to revoke the letters issued to G. F. Pierson. This court has held that a decree on a petition to revoke letters issued to one not entitled to them in preference to petitioner is a decree on an application claiming the right to administer an estate, from which an appeal to this court may be prosecuted as provided by subdiv. 2 of section 6115, Code. Mitchell v. Duncan, 94 Ala. 192, 10 So. 331; Dunham v. Roberts, 27 Ala. 701.

In Mitchell v. Duncan, supra, the legal status was the same as here. There was no claim that under these circumstances an appeal would not lie, but the holding was that it must be taken within thirty days, in which an appeal must, then as now, be taken from a decree on an application to administer an estate.

The case of Dunham v. Roberts, supra, holds that the granting of the petition for letters to which another petitioner is not a party, without action on the latter's petition, justifies a petition to revoke, and an appeal from the decree denying it, though it is said an appeal could have been taken from a decree on the petition for letters had the court entered a decree denying it.

There was no decree rendered on September 26th, nor at any other time on the petition of appellant to be appointed administrator. That which was rendered on that day was not applicable to petitioner. He was not a party to it, and had no right to appeal. As said in Mitchell v. Duncan, supra, the purpose of his petition to revoke was to get rid of an obstacle in the way of his application for letters, which was still pending and undetermined. It was in a way making himself such a party to the petition of G. F. Pierson as to justify an appeal by him.

In the decree denying the motion to revoke, the court refers to what occurred at the hearing of the petition of G. F. Pierson. But those matters do not otherwise appear of record. Although the court may then have verbally denied the petition of appellant, and although appellant may have participated in that hearing by having his petition submitted at the same time, nothing so appears of record. But it shows an ex parte hearing and a decree from which appellant could not appeal as matters then appeared. A different statement of what occurred, manifested by the last decree, is only effective for the purpose of that decree. That decree is the only one from which appellant could...