This is an appeal with bill of exceptions from a decree of the Probate Court of Jefferson County on conflicting petitions for letters of administration on the estate of Mary Jane Speed who died in said county on January 2, 1953. On January 7, 1953, Lena Burnett, appellant, filed her petition for letters of administration in which she described herself as friend and former guardian of decedent. Robert C. Garrison, appellee, on January 8, 1953, filed his petition in which he referred to himself as General County Administrator of Jefferson County. It is admitted that the next of kin of decedent are five second cousins who are non-residents of Alabama. The estate of Mary Jane Speed consists of some $2,500 in cash in the hands of said Lena Burnett, as guardian, and real estate in Jefferson County valued at about $15,000.
On the day set for hearing both petitions, Robert C. Garrison filed a substituted petition which alleged that he was nominated by all the heirs of the decedent, and Lena Burnett filed a substituted petition in which she described herself as "being a creditor of said estate and a friend of said deceased." On the hearing, the Probate
It is undisputed that Mary Jane Speed was adjudicated non compos mentis on or about October 2, 1950, from which time Tom Reese was her legal guardian until about August 28, 1951, when appellant was appointed her guardian and continued to be such until the death of Mrs. Speed. Both appellant and appellee are residents of Alabama.
The applicable statutes to be considered by us are sections 81 and 69 of Title 61 of the Code of Alabama, 1940, which read:
The provisions of § 69 apply to administrators. Griffin v. Irwin, 246 Ala. 631, 633, 21 So.2d 668, 158 A.L.R. 288; Crommelin v. Raoul, 169 Ala. 413, 53 So. 745; Williams v. McConico, 27 Ala. 572.
The effect of the decree of the Probate Court was to find that appellant was not entitled to a preference under subdiv. 3, of § 81, and then to make appointment of appellee as administrator under subdiv. 4, of said section.
It is clear that if appellant occupied a preferred status under § 81, and did not suffer any disqualifying disability as provided by § 69, she was legally entitled to the appointment and the cause should be reversed on that account. For the Probate Court has no discretion in respect to enforcing the preferential right of one to serve as administrator if he is a fit person. It may not weigh the respective qualifications of two applicants and choose between them if one of them has a statutory preference. Hollis v. Crittenden, 251 Ala. 320, 37 So.2d 193; Loeb v. Callaway, 250 Ala. 524, 35 So.2d 198; Griffin v. Irwin, supra; Calvert v. Beck, 240 Ala. 442, 199 So. 846.
"These enumerated grounds of unfitness are held to be exclusive and disqualification of an applicant to administer an estate who is otherwise entitled to preference, not based on one of these specified grounds, is not authorized. Crommelin v. Raoul, 169 Ala. 413, 53 So. 745; Nichols v. Smith, 186 Ala. 587, 65 So. 30; Bell v. Fulgham, 202 Ala. 217, 80 So. 39; Marcus v. McKee, 227 Ala. 577, 151 So. 456." Griffin v. Irwin, supra. [246 Ala. 631, 21 So.2d 669.]
The substitution of the word "satisfactory" in the Act of 1936, now § 81 of Tit. 61 of the Code, for the word "fit" in the older Codes made no change in the meaning of the statute. Moore v. Strickland, 246 Ala. 624, 21 So.2d 665. While appellee offered evidence in the court below to show that his appointment would be pleasing to the next of kin by introducing their letters and telegrams attempting to nominate him for appointment, these could not give him any preferred status as defined by § 81 for two reasons. The next of kin are all non-residents
So the only effect that could have resulted from this evidence was to apprise the court of the wishes of the next of kin for its consideration in the event that no person having a preferential status under the statute should apply for letters of administration, and the fact that the next of kin desired the appointment of appellee as administrator was a factor which the court might consider in the event it should find no applicant entitled to a statutory preference. 33 C.J.S., Executors and Administrators, § 44, p. 940.
Appellee does not on appeal, nor did he in the court below, claim any preferred status. His position here and there was that neither he nor appellant held a preferential position within the terms of the statute, and that the Probate Court could in its discretion, under the fourth subdivision of § 81, appoint appellant, appellee, or any other qualified person as administrator.
Appellant's assignments of error can be summarized as two broad propositions: First, she asserts that she has proven sufficient facts by the testimony to place her in a preferred position by reason of being a creditor of the estate, and the Probate Court on that account could not properly have denied her the appointment. Second, if the evidence did not adequately prove her preferred category, the court committed error in sustaining appellee's objections to questions directed to her as a witness designed to elicit her own personal testimony which would have proven her entitled to such preferential appointment.
We consider the first proposition. Appellant's amended petition refers to her as "your petitioner being a creditor of said estate and a friend of said deceased, an inhabitant of this state, above the age of twenty-one years, and in no respects disqualified under the law from serving as administrator * * *."
The question was raised on the hearing and assigned as error on appeal that averments in the petition are not in the language of § 81 of Title 61 of the Code, nor do they substantially aver facts to place appellee within one of the four subdivisions of said section.
We are familiar with the fact that strictness of pleading is required in the petition in some jurisdictions, as illustrated by the following:
In view of our own holdings that a petition is not a necessary prerequisite to the validity of an appointment of an administrator, we hold that strictness of pleading in the petition is not required in this state. Breeding v. Breeding, 128 Ala. 412, 30 So. 881; Davis v. Swearingen, 56 Ala. 31; State ex rel. Campbell v. Chapman, supra;
We are not faced in the instant case with any question of disqualification of one who admittedly occupies a preferential position. The trial court has decreed that appellant is not a creditor and has made appointment under subdivision 4 of § 81. Both petitions were filed within 40 days after the death of decedent became known, so the time of filing application for letters is not a factor in the instant case.
Mrs. Burnett was no relation to Mrs. Speed. The theory of her case is that she rendered services to the deceased for a number of years before her death, for which she has a claim against the estate on the quantum meruit, for the reasonable value of such services by reason of an implied contract under our holding in Duncan v. Johnson, 239 Ala. 183, 194 So. 528. These services which were claimed to have been rendered fall into four several categories.
1. Services rendered before Mrs. Speed was judicially declared non compos, and at such times as now to be barred by the statute of limitations.
2. Services rendered before Mrs. Speed was declared non compos and at such times as not now to be barred by the statute of limitations.
3. Services rendered after Mrs. Speed was declared non compos and while Tom Reese was her lawful guardian.
4. Services rendered after Mrs. Speed was adjudicated non compos and while appellant was her lawful guardian.
While we feel it desirable to be mindful of these four different situations, under our view of the evidence we do not consider it necessary to discuss separately those parts of appellant's claim originating in each category.
Appellant has some $2,500 in her hands as former guardian of Mrs. Speed. There was evidence that Johns Ridout Funeral Parlors was a creditor of the estate in the sum of $1,282.25, but was not an applicant for letters of administration.
Appellant's evidence consisted of statements of several witnesses who testified that Mrs. Burnett was kind to Mrs. Speed and waited upon her, sewing, washing and cooking for her; bathed her and looked after her business at times, especially during spells of sickness; that Mrs. Burnett lived in the house with Mrs. Speed for a period of time, and also took Mrs. Speed to her own home on one or more occasions, the last being for seven weeks during Mrs. Speed's last illness. One witness testified that she heard Mrs. Speed say that Mrs. Burnett was there all the time she needed her, and she wanted her to be paid for it. Another testified that she heard Mrs. Speed say a week before she died that she wanted Mrs. Burnett to have everything she had. Another heard Mrs. Speed say that if she had anything at her death, she hoped Mrs. Burnett would get it. The times to which these statements referred were generally vague, indefinite and spasmodic, though several specific times mentioned were during the period after Mrs. Speed had been adjudicated non compos mentis, and others were so remote as probably to be barred by the statute of limitations. No testimony tended to recite the number of days, weeks or hours which Mrs. Burnett performed these services, nor the value of these services, nor their regularity. The evidence tended to show their nature as occasional.
Obviously, Mrs. Speed, by her own words, could make no express contract after she was adjudicated non compos mentis. Tit. 9, § 43, Code of 1940; Martin v. Simms, 233 Ala. 646, 172 So. 897; Lowery v. Pritchett, 204 Ala. 328, 85 So. 531.
Under the evidence adduced, which was heard ore tenus, the trial court refused to accord appellant a preferred position entitling her to letters of administration under subdiv. 3 of § 81. Bearing in mind that a claim withheld until after the death of the person to whom the service was rendered is viewed with suspicion, 34 C.J.S., Executors and Administrators, § 371, p. 106, and according to the finding of the trial court that presumption of correctness which is due it, we are impelled to the
We now consider the question of the trial court's refusal to allow appellant to testify personally that she rendered certain services to deceased, and secondly, that she was never paid for these services. In the record and bill of exceptions, we find the following questions asked appellant, and appellee's objections thereto sustained by the trial court:
§ 433, Tit. 7, Code of Alabama, 1940, provides:
The pertinent inquiry here is whether the testimony sought to be produced by these questions is comprehended within the terms of this Code section or is properly classed among the exceptions thereto. Decisions of this court in regard to various claims related in some degree to the present situation have been, in substance, as follows:
It has been stated that—to come within the influence of the statute, the testimony must be of some act done by the
Also, in Warten v. Black, 195 Ala. 93, 70 So. 758, supra, the following statements of rules of guidance in determining the exclusion of proposed testimony are set forth as follows:
It is to be noted that objections to the four questions quoted hereinabove were general and no offer was made to show what the answer of the witness would have been to each question. We are unable to say that her answers would have come within the rules governing admissibility of testimony in the instant case. This court in similar situations has held that where, on the trial of a cause, the court sustains objections to questions propounded to a witness by the appellant, and the grounds of the objection are not set out, and it does not appear from the bill of exceptions that the answers sought to be elicited would not have been immaterial or otherwise illegal, this court will not presume, in order to put the trial court in error, that the answers to these questions, if they had been made, would have been legal evidence and such rule, so presented, will not work a reversal of the case. Burgess v. American Mortg. Co. of Scotland, 115 Ala. 468, headnote 3, 22 So. 282; Flowers v. Graves, 220 Ala. 445, 125 So. 659; Morgan Hill Paving Co. v. Pratt City Sav. Bank, 220 Ala. 683, 127 So. 500.
Opinions supportive of the statement above are quoted:
Not surprisingly, the rule probably is more clearly stated by Stone, J., in Allen v. State, 73 Ala. 23, 24, than elsewhere:
The foregoing quotations will support our holding that the trial court did not commit reversible error in sustaining appellee's objection to the four questions set out above. Appellant did not prove her right to a preferred position under the statute, nor did she offer any testimony which would have entitled her to such right.
We are not unmindful of the fact that § 445 of Tit. 7, Code of 1940, Acts 1927, p. 636, contains provisions which are conceivably contrary to the foregoing, but we have held many times since the passage of that Act as follows:
See, also, Stallings v. State, 249 Ala. 580, 32 So.2d 236.
There being no applicant for letters of administration within any of the classes entitled to a preference by the statute, it follows that the court could appoint any qualified person and there was no error in his appointment of appellee. For, it has been held that "when the probate judge appoints under subdivision 4 of the statute, he is clothed with `large discretionary powers.'"
The judgment of the lower court is affirmed.
LIVINGSTON, C. J., and SIMPSON and GOODWYN, JJ., concur.