Opinion
6 Div. 703.
January 17, 1918.
Appeal from Probate Court, Jefferson County; J. P. Stiles, Judge.
Perry Mims and G. P. Benton, all of Bessemer, for appellant. J. L. Drennen, of Birmingham, for appellees.
Will Jarrett, or Garrett, died in Jefferson county on April 1, 1917. On a petition for letters of administration, filed in the probate court of Jefferson county on April 25, 1917, by F. J. Harrison and Fleeta Jarrett, letters of administration on the estate of the intestate were ordered issued to F. J. Harrison. The petition of Harrison and Jarrett alleged that the petitioner Fleeta Jarrett was the surviving widow; that the intestate had no children; that the petitioner Harrison was the brother-in-law of the intestate.
In September, 1917, the appellant, Nettie Garrett, filed her petition wherein she sought to have Harrison removed as administrator, the letters granted to him revoked, and to effect the appointment of Nettie as administratrix of the estate of the intestate. The allegation in this petition for removal, etc., is that the petitioner is the true and lawful widow of the intestate. The court sustained the appellee's demurrer to the petition; and, the petitioner refusing to amend her petition, it was dismissed and petitioner taxed with the costs of the proceeding.
By failing to apply for letters of administration within 40 days after the death of intestate, Nettie Garrett, even though she was in fact the widow of the intestate, waived all right of preference she might have had to the issuance of letters of administration on the estate of this intestate. Code, §§ 2520, 2522; Childs v. Davis, 172 Ala. 266, 55 So. 540. Hence Nettie Garrett, if indeed the widow of intestate, cannot now be heard to complain of the mere prematurity of the issuance of letters of administration to Harrison. The case of Fields v. Woods, 191 Ala. 93, 67 So. 1016, was entirely different in point of fact. There one claiming to be the widow of an intestate was appointed "before the expiration of 40 days from the date of" the death of the intestate.
The other phase of the petition, whereby the removal of Harrison and the revocation of the letters to him is sought, is predicated of the general assertion of the entertainment by Harrison of a fraudulent purpose to appropriate the funds of the estate to his own use. It appears throughout the course of this administration that the single asset of the estate of the intestate was a claim against an industrial company arising out of the death of the intestate; and that Harrison had, it seemed, received from the company the sum of $978.12 in settlement of the claim. The allegation, otherwise in appellant's petition, that Harrison effected the settlement before his appointment as administrator, and that the settlement was the product of collusion or fraud, cannot avail this petitioner; since the petition of the appellant as well as the sworn claim filed by the appellant both manifest a ratification of that settlement by claiming the amount thereof and by invoking the court to compel Harrison to pay that sum into the court. The record discloses that Harrison executed, with presumably adequate security, an administrator's bond in the sum of $2,000. There is no reason disclosed to anticipate the failure of the approximately $1,000 to reach the hands of those to whom, under the law, it should go. The allegation of a fraudulent purpose on the part of Harrison or Fleeta Jarrett or both is, as an averment of fraud, entirely insufficient. It is but a conclusion of the pleader. The third ground of the demurrer was well directed, and, alone, justified the action of the court in sustaining the demurrer.
Affirmed.
ANDERSON, C. J., and GARDNER and THOMAS, JJ., concur.