Williams v. McConico

[APPLICATION BY WIDOW BOB LETTERS OP ADJONISTRATION ON ESTATE OP HER. DECEASED HUSBAND.] 1. Sufficiency and approval of appeal bond. — When an appeal is taken from a decree of the probate court, under section 1888 of the Code, a simple acknowledgment in writing is sufficient security for the costs; and if an appeal bond is taken, which describes ihe decree with sufficient certainty, and which is-shown by the judge’s certificate to have been approved by him at the time the appeal was taken, this is a substantial compliance with the law. 2. What disqualifies widow from adminislering on her husband’s estate. — A widow is entitled to administer on her husband’s estate, unless disqualified by some one of the causes specified in section 1658 of the Code; but the fact that she had separated and was living apart from him at the time of his death, and entertained feelings of hostility towards him, does not disqualify her. 3. Demurrer to evidence. — When a demurrer is interposed to evidence adduced in support of a plea, tho defendant may be compelled to join in it; and if the evidence is insufficient to support tho plea, judgment should be rendered for the plaintiff.

Appeal from the Court of Probate of Sumter. Mes. Eliza A. Williams, the appellant, having made application for letters of administration on the estate of her deceased husband, James 0. Williams, the guardian ad litem, of the decedent’s minor heirs appeared, and contested her right to administer on the ground of her unfitness. On the trial of this issue, the applicant proved tho death of said James 0. Williams, that she was Ms widow, and that she was over twenty-one years of age, and a resident of this State. The contestant then introduced evidence, showing that the applicant had separated from her said husband some time in the spring previous to his death, and went to reside in Choctaw county; that she accused him of inconstancy, and said that she would never live with him again; that she manifested great animosity towards him, and continued to live separate and apart from him up to the time of-his death; that her said husband left his business in a very confused condition, and was involved in many lawsuits ; that the applicant had funds in her hands, belonging to hir minor children by a former husband, of whom she was sole guardian when she married Williams, which she would not deliver up on settlement, and which (as the witness thought) she would hold against any other person offering to administer. The applicant also introduced evidence, tending to show that she was of good business capacity and good moral character, and that any one who administered on her husband’s estate would be compelled to obtain her assistance. The applicant demurred to the testimony introduced by the contestant, of which the substance only is stated above, but the court overruled the demurrer. She also offered to the court a good and sufficient bond for the faithful performance of the duties of the administration, but tbe court refused to receive it,and refused also to grant to her letters of administration on said estate; and to these rulings of the court she excepted, and now assigns them for error. The appeal bond in tbe record is dated September 28th, 1853, and is made payable to Christopher S. McConico, the guardian ad litem of the minor heirs. The appeal was taken to the January term, 1854, of this court, and the bond is endorsed by the probate judge, “Approved February 18, 1854-, as of tbe date of the execution of the bond”; but he certifies, in answer to a special certiorari, that the bond was in fact approved by Mm at the time- of its execution, though he did not make the endorsement of its approval until Feb. 18,1854.