Whitworth v. Whitworth

• Decision Date: 18 October 1951
• Docket Number: 6 Div. 226
• Citation: 256 Ala. 296,54 So.2d 575
• Parties: WHITWORTH v. WHITWORTH.
• Court: Alabama Supreme Court

Page 575

54 So.2d 575

256 Ala. 296

WHITWORTH v. WHITWORTH.

6 Div. 226.

Supreme Court of Alabama.

Oct. 18, 1951.

Curtis, Maddox & Johnson, Jasper, for appellant.

Fite and Fite, Hamilton and Fite & Fite, Jasper, for appellee.

BROWN, Justice.

This appeal is from a final decree entered by the Circuit Court of Marion County, in equity sitting, in the matter of the estate of Billie John Whitworth, deceased, removed from the Probate Court of said county, denying and dismissing the petition of Susie Whitworth, the divorced wife of said decedent, seeking the removal of Marvin J. Whitworth as administrator and the appointment of the petitioner as administratrix of said estate.

The decree entered September 7, 1950, after stating that the court was of opinion that the petitioner is not entitled to any relief under her petition, recites:

'Upon consideration of the pleadings and of the competent, legal, material and relevant testimony,

'It is therefore, ordered, adjudged and Decreed by the Court that the Petition in this cause be, and the same hereby is dismissed. The costs of the cause are taxed against the Petitioner, for which execution may issue.'

The gist of the petition is thus stated: 'The petitioner, Susie Whitworth, avers that at the time of the death of said decedent, Billie John Whitworth, she was his common law wife and that she is now his widow, and as such is entitled to share in the distribution of his estate and is entitled as a matter of preferential right to administer the estate of said decedent, Billie John Whitworth. The respondent, Marvin J. Whitworth, was prematurely, improperly, and improvidently appointed as such administrator of said estate, contrary to law, without notice to the petitioner. Said appointment was made prior to the expiration of forty days from the death of said decedent, Billie John Whitworth. This petition is filed within forty days after the death of said decedent, Billie John Whitworth. The petitioner, Susie Whitworth, is the proper person to administer said estate, and she is in no way disqualified under the laws of Alabama to serve as administratrix of said estate. She has not waived her right to administer said estate and she now asserts that right.'

These allegations were denied by the respondent administrator, thus presenting an issue of fact, the burden of proof of which was on the petitioner. This issue of fact was heard and determined on testimony given ore tenus taken before the court and documentary evidence, resulting in the stated decree, from which the petitioner has appealed.

The background of the proceedings as disclosed by the evidence briefly stated is: The petitioner and the intestate were married in Winston County March 25, 1925 and lived together in a state of wedlock for about twenty years when said domestic relation was interrupted by the voluntary abandonment by the wife of her husband, the decedent, who at that time, as the evidence tends to show, was in failing health, and on January 10, 1947, he filed his bill seeking a divorce.

On April 22, 1947, the wife (petitioner here) filed an answer and cross-bill seeking alimony temporary and permanent and attorney's fees. On May 5, 1947, a decree for temporary alimony and attorney's fees was granted, which was not complied with by the complainant, and he on application of the wife by her solicitor was cited for contempt and required to appear and show cause. On the hearing on June 2, 1947, the court ordered execution to issue for the alimony in arrears and attorney's fees. Execution was issued and levied by the sheriff on the real estate of the complainant in the divorce suit to be had on July 28, 1947.

Thereafter on July 15, 1947, before the date of the sale, the defendant filed a substituted answer, withdrawing the original answer and cross-bill, alleging in the substituted pleading that the parties had agreed on a settlement of their property rights...