Willoughby v. Willoughby

• Decision Date: 15 May 1919
• Docket Number: 1 Div. 84
• Citation: 203 Ala. 138,82 So. 168
• Parties: WILLOUGHBY et al. v. WILLOUGHBY.
• Court: Alabama Supreme Court

82 So. 168

203 Ala. 138

WILLOUGHBY et al. v. WILLOUGHBY.

1 Div. 84

Supreme Court of Alabama

May 15, 1919

Appeal from Probate Court, Mobile County; Price William, Judge.

Petition by Alonzo L. Willoughby and others for the removal of Jennie U. Willoughby, as administratrix. From an order denying the petition, petitioners appeal. Affirmed.

Rich &amp Hamilton, of Mobile, for appellants.

Smiths Young & Leigh, of Mobile, for appellee.

THOMAS J.

This is a petition for removal of administratrix under the statute and from the order or decree declining the same, the appeal is taken.

The granting of letters of administration on estates of decedents is embraced in article 2 of the Code. By section 2520 thereof it is declared that--

"Administration of an intestate's estate must be granted to some one of the persons herein named, if willing to accept, and fit to serve, in the following order: 1. The husband or widow. 2. The next of kin entitled to share in the distribution of the estate. 3. The largest creditor of the intestate residing within this state. 4. Such other person as the judge of probate may appoint." The right of the widow to letters of administration on the deceased husband's estate over the other classes of persons enumerated in the statute has been the subject of discussion by this court. Dunham v. Roberts, 27 701; Williams v. McConico, 27 Ala. 572; Curtis v. Williams, 33 Ala. 570. It is admitted that Mrs. Jennie U. Willoughby is the widow of Charles D. Willoughby, deceased, and under the statute she was the first person entitled to administer her husband's estate, unless disqualified as provided by the statute. Crommelin v. Raoull, 169 Ala. 413, 53 So. 745; Nichols v. Smith, 186 Ala. 587, 589, 65 So. 30. Even though she had an adverse interest in the estate, or claimed to have a right superior or antagonistic to decedent's next of kin, such claims did not disqualify her from acting as administratrix, or subordinate her superior claim to administer the estate to that of petitioners, the brothers, the heirs, and next of kin of decedent. Williams v. McConico, supra; Kidd et al. v. Bates, 120 Ala. 79, 23 So. 735, 41 L.R.A. 154, 74 Am.St.Rep. 17.

The amended petition for removal of the administratrix omitted the charge of appellee's claim of interest in the estate, and alleged as ground therefor the failure to file the inventory required by statute. Petitioners concede that the inventory was not filed "within two months after grant of letters of administration." In reply to this, however, they say that the mere failure to file such inventory within the time prescribed by the statute is "not a sufficient cause for removal"; that is, if inadvertently omitted. In this they find support in Killam's Heirs v. Costley, Adm'r, 52 Ala. 85, 87, where Mr. Chief Justice Brickell says:

"The failure to make and return an inventory is one of the specific grounds for removal expressed in the statute. Yet in the case of Hubbard v. Smith, 45 Ala. 516, it was held that when the failure to file an inventory was not willful, and no detriment had ensued to the estate, it was not cause of removal. We regard that decision as supporting the principle we have announced."

In Hubbard v. Smith et al., supra, the observation is made that the administrator "ought to have filed an inventory, as any other administrator is required to do, and to have made annual settlements. But his mere omission to do so, under the evidence, was not sufficient to justify his removal." Analogous authority is Hightower v. Moore, 46 Ala. 466, where it was held that an administrator ought not to be removed for merely failing to make regular settlements, and no damage to the estate is shown, and he has not been required to do so by either the court or those interested.

The causes for removal of an administrator and revocation of his letters are as follows:

"1. Imbecility of mind; intemperance; continued sickness, rendering him incapable of the discharge of his duties [or when from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate. General Laws, Reg.Sess. 1919, No. 37]. 2. Failure to make and return inventories or accounts of sales; failure to make settlements as required by law; or the failure to do any act as such executor or administrator, when lawfully required by the judge of probate. 3. The wasting, embezzlement, or any other maladministration of the estate. 4. The using of any of the funds of the estate for his own benefit." Code 1907, § 2566.

Subsection 2 of this statute is contained in preceding Codes--1896, § 92; 1886, § 2045; 1876, § 2386; 1867, § 2017; 1852, § 1696--without change. In each one the words "administrator or executor may be removed and his letters revoked for any of the following causes" are as we have set out. Thus did the statute find its place in the present Code, with the construction or interpretation placed by this court on the words "failure to make and return inventories or accounts of sales." Crommelin v. Raoull, et al., supra; Oglesby v. Howard, 43 Ala. 144; Hubbard v. Smith, supra; Hightower v. Moore, supra.

In Oglesby v. Howard, supra, the petition for removal was dated July 4, 1867, and the appointment of said administrator was of date November 25, 1863. From the evidence, it appeared that the administrator made one annual settlement in 1866; had never made return or inventory of said estate; that much of the funds of the estate was of "money" which said administrator had invested in "bonds" of the "Confederate States of America," without an order or judgment of the court authorizing him to so invest the moneys of the estate. The justice observed that, "Beside these, there were many other irregularities in the management and conduct of said estate by said administrator, which cannot be sanctioned by law, without further explanation," and that the failure to make and return an inventory as required by law, the failure to collect the hire of the slaves when it was earned and capable of collection, or the investment after the collection of the money thus obtained, without a proper order or judgment of some court, was a violation of the administerial duty and a devastavit; and for "both of these causes, unexplained as they are," the probate court was held to have erred in its judgment refusing to remove the administrator as prayed in the petition.

It is noted the Oglesby Case finds no parallel in the facts presented by the present record. Mrs. Willoughby, as a witness in her own behalf, made a fair and full disclosure of her administration of the effects of the estate, showed that her failure to file the inventory within the time prescribed by statute (Code, §§ 2579, 2581, 2583), was not due to fraud or willful wrong, but as a mere inadvertence on her part. It is manifest that the property belonging to the estate is in her possession and is subject to distribution, on final settlement, among those entitled according to law. Nothing has been lost to the estate by failure to file the inventory. An additional bond was...