Smith v. Phillips
Supreme Court of Alabama
Appeal from Probate court of Tallapoosa. The appellant, Smith, filed his petition in the probate court, praying that Sarah Phillips, executrix of James D, Phillips, deceased, be required to execute a good and sufficient bond for' the performance of her duties as such executrix.
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Appeal from Probate court of Tallapoosa. The appellant, Smith, filed his petition in the probate court, praying that Sarah Phillips, executrix of James D, Phillips, deceased, be required to execute a good and sufficient bond for' the performance of her duties as such executrix. The amended petition shows that by .the will of the testator th® executrix was exempted from giving bond; that “petitioner is interested in the administration of said estate of James Phillips, deceased, he being a judgment creditor of the same to the amount of about three hundred dollars, and that his interest will be…
1Opinion of the CourtBrickell, C. J.
Until the statute of March 1, 1848, (Pamph. Acts 1847-8, p. 106), it was not within the power of a testator, by any direction in his will, to relieve his executor from the duty of giving bond and security, for the faithful performance of the duties enjoined on him by law. The statute was express and imperative, devolving on the court taking probate of the will, and granting letters testamentary, the duty of requiring the bond and security, payable and conditioned as required by law; and the testator had no dispensing power over the statute. The act of March 1, 1848, required the orphans court…
2Cited by6 opinions
- Allen v. DraperSupreme Court of Alabama · 1893
- Kelly v. GarrettSupreme Court of Alabama · 1880
- Byrd v. JonesSupreme Court of Alabama · 1887
- Betts v. CobbsSupreme Court of Alabama · 1898
- Phillips v. SmithSupreme Court of Alabama · 1878
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