Kidd v. Bates

Decision Date23 June 1898
Citation23 So. 735,120 Ala. 79
PartiesKIDD ET AL. v. BATES.
CourtAlabama Supreme Court

Appeal from probate court, Elmore county; Cabot Lull, Judge.

Application by Louis A. Bates for letters testamentary of the last will of Horatio B. Tulane, deceased. Louisa V. Kidd and another heirs at law and legatees under the will, filed objections and, from an order sustaining a demurrer thereto, they appeal. Affirmed.

Gunter & Gunter, for appellants.

Tompkins & Troy, for appellee.

BRICKELL C.J.

Horatio B. Tulane died in October, 1897, leaving a last will and testament, in which Louis A. Bates and Louisa V. Kidd were named as executor and executrix. After the probate of the will Louis A. Bates made application for letters testamentary, which application was contested by appellants Louisa V. Kidd and Louis S. Kidd, heirs at law of testator and legatees under the will, who filed objections to the issue of letters testamentary to said Bates, and asked that said application be refused. The substance of these objections is that while the testator was in a very weak condition of body and mind, caused by age and disease, and was in the care and under the control and dominion of said Bates, who occupied towards him the relation of confidential agent and companion, transacting much of his business, the latter, by the exercise of fraud and undue influence, induced testator to lend him at various times, without security large sums of money, aggregating more than $100,000; and that subsequently the said Bates induced testator to accept, as security for $64,000 of said indebtedness, a like amount of the bonds of a Tennessee corporation called the Tulane Hotel Company; and and thereafter, in September, 1897, while testator was at said hotel, still weak in mind and body, and in the care of and being nursed by the said Bates and others acting for him, who excluded from his presence his friends and acquaintances, he was induced by the exercise of fraud and undue influence to execute an instrument by which said $64,000 of bonds were donated to said Tulane Hotel Company, of which corporation Bates was president, and the entire capital stock of which he owned. It is further averred that, by reason of the facts above stated, the said Bates is indebted to the estate in a sum exceeding $100,000, but that he denies that he is indebted to it in any amount, and claims that all the money alleged to have been loaned to him was, in fact, donated to said Tulane Hotel Company, by reason of which adverse claim the interest of Bates is antagonistic and hostile to that of the estate and the legatees under the will, and litigation between Bates and the estate is necessary to determine the fact and amount of said indebtedness, which litigation would be embarrassed by the issue of letters testamentary to the applicant. To these objections appellee demurred, and the sustaining of the demurrer and issue of letters to him are the only errors assigned.

The first ground of demurrer is too general to be considered, and the others present the single question whether, upon an application for letters testamentary by the person named as executor in the will, the court has authority to refuse to issue the letters to such person for any other causes than those specified in the statute. The statutes affecting the question presented, as found in the Code of 1896, are as follows:

"Sec. 45. Whenever a will has been admitted to probate in this state, the judge of the court in which the will was probated may issue letters testamentary, according to the provisions of this chapter, to the persons named as executors in such will, if they are fit persons to serve as such.
"Sec. 46. 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."
"Sec. 48. If the person named in the will as the sole executor is, or if all the persons named therein as executors are, from any of the causes enumerated in the second preceding section, unfit to serve as executor or executors, letters of administration, with the will annexed, may be granted on the testator's estate under the provisions of section 53."

Section 47 prescribes the form of letters testamentary, and other sections of the chapter provide for the grant of letters of administration with the will annexed in the event of the death of the sole or surviving executor, or the renunciation of the right to act by the person named in the will.

The theory of counsel for appellants is that the words "if they are fit persons to serve as such," contained in section 45, indicate a legislative intent to give a very broad discretion to the court in determining what are causes of disability, and who are fit persons to serve as executors and that section 46 was intended not to define all the causes of disability which should authorize the rejection of persons who apply for letters, but only to limit this discretion to the extent of forbidding the issue of letters to one who was under 21 years of age, or who had been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding, was incompetent to discharge the duties of the trust. If section 45 stood alone, we would be inclined to adopt the construction contended for, and to declare that any cause which rendered the applicant unfit or unsuitable to serve as executor without detriment to the estate and undue advantage to himself would justify the refusal to issue letters testamentary to him. And upon this construction we would have no difficulty in determining that the facts alleged, if true, render the applicant for letters and unsuitable person to discharge the duties of the trust which require him to collect all the debts and other assets of the estate, and preserve them for distribution according to the provisions of the will, since his interests are clearly adverse to the estate, and antagonistic to the legatees and devisees and others interested therein. The decisions of the courts of all those states the statutes of which vest the court with the power and discretion to determine who are suitable persons to serve as executors so hold, and the correctness of these decisions cannot be doubted. Winship v. Bass, 12 Mass. 199; Drake v. Green, 10 Allen, 126; Thayer v. Homer, 11 Metc. (Mass.) 110; Kimball's Appeal, 45 Wis. 391; In re Gleason's Estate (Sur.) 41 N.Y.S. 418. But the several sections of the Code referred to were adopted at the same time, are in pari materia, and must be construed together; and the construction of one, if doubtful, may be aided by a consideration of the words of, and the legislative intent indicated by, the others, and of the evil of the common law intended to be remedied. And a consideration of all the sections and of the common law relating to the subject, which they were intended to modify, leads to a conclusion which is opposed to the construction placed by counsel on section 45. It is a rule of statutory construction that a statute in modification or derogation of the common law will not be presumed to alter it further than is expressly declared. The presumption is that the language and terms of the statute import the alteration or change it was designed to effect, and their operation will not be enlarged by construction or intendment. Cook v. Meyer, 73 Ala. 583; Webb v. Mullins, 78 Ala. 113. The rule of the common law was that all persons might be appointed executors who were capable of making a will. Neither infancy, nonresidence, coverture, intemperance, improvidence, ignorance, vice, dishonesty, nor any degree of moral guilt or delinquency disqualified one for the office. Idiots and lunatics were practically the only classes disqualified, and the rule now prevails generally that courts have no discretion in respect to the issue of letters to the persons nominated in the will, unless such persons are expressly disqualified, or such discretion is vested by law; and the person appointed by the will cannot be rejected by the court except where the law expressly so provides. 1 Woerner, Adm'n, p. 503 et seq.; Schouler, Ex'rs, §§ 32, 33; 1 Williams, Ex'rs (7th Am. Ed.) p. 269; Redf. Wills, pt. 3, c. 2, § 3; Stewart's Appeal, 56 Me. 300;...

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