Bingham v. Crenshaw

STONE, J. The view we take of this case renders it unnecessary that we should consider several of the questions, some of which are not free from difficulty. More than forty days having elapsed after'the death of Mrs. Crenshaw was known, and no one, within the forty days, having asserted claim to the administration under section 1668 of the Code, subdivisions 1, 2 and 3, — this appointment must depend, for its authority,, on subdivision 4 of said section, which directs administration to be [686] granted to “ such other person as the judge of probate may appoint.” It is here objected, that "William M. Crenshaw had, before his appointment, intermeddled in the estate of Mrs. Crenshaw — had disposed of property belonging to her estate; that he had thus disabled himself from maintaining suits for the recovery of such property, and hence his appointment was irregular and illegal. In the case of Chittenden v. Knight, 2 Lee, 559, the facts were these: “ Margaret Chittenden died intestate; her son, John Chittenden, and her daughter, Juliana Knight, the wife of William Knight, both prayed administration. Knight, to divest the son, J. Chittenden, of the preference which by the practice of the court he has, exhibited an affidavit that, the next day after deceased’s burial, he, J. Chittenden, took possession of deceased’s effects, had an inventory made of them, and delivered them without any authority to a broker, who sold them to the best bidder at a public auction.” The administration was given to John Chittenden, the son. This ease is directly in point, and is an authority for holding, that the fact of intermeddling with the effects, before administration, does not, per se, disqualify the intermeddler. This case is quoted without dissent by Mr. Lomax, in his excellent work on Executors, vol. 1, side page, 189. The Code sanctions the idea, that, in granting administration, males are to be preferred to females. — §§ 1670, 1673. It also clothes the probate court with a discretion, when there are several persons equally entitled to administration, to grant letters to one or more of such persons. § 1672. We think the probate court committed no reversible error, in the appointment of Mr. Crenshaw. — See Curtis v. Williams, 33 Ala. 570. In announcing the above result, we do not wish to be understood as affirming whether Mr. Crenshaw can or cannot, as administrator of his mother, maintain a suit for property sold by him, previous to his appointment. See 1 Lomax(on Executors, side pages 132-3 ; Whitehall [687] v. Squire, 1 Salkeld, 295; S. C., Holt, 45; 11 Vin. Abr. 221; and authorities on tbe brief of counsel. Neither do we now decide, whether there are disqualifications for the office of administrator, other than those enumerated in section 1658 of the Code. — See Williams v. McConico, 27 Ala. 572; Curtis v. Williams, 33 Ala. 570. Nor do we now announce that, in the matter of selecting between two or more applicants, against whom there exist no statutory objections, the action of the probate court can be reviewed. — Miller v. Jones, 26 Ala. 247 ; Curtis v. Williams, 33 Ala. 570. Nor need we decide, whether this appeal was prosecuted in time to raise the question of the refusal of the court to appoint Mr. Bingham administrator. — Code, § 1888, subdivision 2; Holtzelaw v. Ware, at the present term. See, also, Acts of 1857-8, p. 244. The judgment of the probate court is affirmed.