Allen v. Draper

McCLELIAN, J. Section 2025 of tiie Code provides: “Any testator may, by an express provision in bis will to tbat effect, exempt an executor from giving bond; and wben such provision is made such bond must not be required except in the following cases : 1. When aDy executor, heir, legatee, or other person interested in the estate, makes affidavit, showing his interest, and alleging that such interest is, or will be endangered for want of security. 2. When in the opinion of the Judge of Probate, the estate is likely to be wasted to the prejudice of any person interested therein.” Section 2026 provides : “In the cases provided for by the preceding section, upon application for the executor to give bond, he may show cause against such application, and must have such notice as the judge may deem reasonable ; but if he is out of the State, the application may be heard and determined without notice.” The affidavit of Lula M. Draper, presented in the- form of a sworn petition to the probate judge in this case with the exhibition thereto of the will of her ancestor, complies strictly with the 1st exception in section 2025, supra. The petition and the will, made a part of it, show that Allen is executor of the will of affiant’s father, E. D. Allen, deceased, without bond, that affiant is a legatee under that will and the extent prima facie of her interest in the decedent’s estate, and avers that “the interest of petitioner as legatee under said will requires that said J. Baxter Allen be required to give good and sufficient bond in the administration of said estate, and that said interest will be endangered for the want of security.” This sworn petition was manifestly sufficient under the statute, and the court committed no error in overruling the demurrers to it. Allen, the executor, undertook to show cause against the requisition of bond as he is permitted to do under section 2026, supra. The burden of this.effort was upon him. The legatee, by the filing of the affidavit required by the statute, entitled herself to an order requiring bond to be given, there being no controversy as to the fact that she was a legatee. Section 2026, imposes no further burden on her. Its sole purpose was to let in the executor to show cause, if anjr he could, why the relief prayed in the petition, and which was grantable as matter of course in the absence of adverse showing, should not be granted. To this end the executor filed an answer, the leading theory of which was that petitioner had no interest in the estate, notwithstand [593] ing sbe was named as a legatee of very considerable property in tbe will, because, as is alleged, tbe entire estate would be exhausted in tbe payment of debts and charges imposed by tbe will so that nothing could be left to pass under tbe bequest and devise to Mrs. Draper. This presented an wholly irrelevant inquiry. Tbe question is not what tbe affiant wiíl ultimately realize under tbe will, but solely whether by tbe terms of the instrument sbe is a legatee under it. In such case it is no more competent to go into an investigation as to whether her legacy would be exhausted in tbe payment of debts, or in any other manner authorized by the will, whether, in other words, she would in any event ultimately realize anything under the will, than it would be to inquire on the petition and affidavit of a creditor whether defenses existed which would ultimately defeat his claim ; and that this can not be done has been expressly declared by this court.—Smith v. Phillips, 54 Ala. 8; Phillips v. Smith, 62 Ala. 575. The answer further proceeds on the idea that the property of the estate is of such character as that it could not be wasted by the executor. "Whether this could be true in any case we are not called upon to decide. Conceding that cause might be shown at all in this way against the requisition of security, it has not been shown in this instance. A bill of exceptions is found in this transcript. Its purpose seems to be to present for review certain rulings of .the Probate Court in the admission and exclusion of testimony. It does not purport to set out all the evidence. In such case though every averment of the answer had presented a material issue, and though the evidence which is set out in the bill of exceptions had tended strongly to support such aver-ments, we should still have to presume that there was other evidence overturning these tendencies and fully supporting the contrary conclusion of the trial court. Nor will the exceptions reserved on the admission of testimony avail appellant. The objections were to questions. They were overruled. But it does not appear that the questions were answered, and the exceptions reserved are to the overruling of the objection to the interrogatories and not to the admission of illegal testimony. For aught that appears, even conceding that each of the questions called for incompetent evidence, it may well be that no illegal testimony was in fact adduced before the court. Moreover, if the proposed testimony was illegal and was actually received, we should still have to assume that the competent evidence introduced justified the order entered by the probate judge. Affirmed.