
    FORRESTER vs. FORRESTER'S ADM'RS.
    rAPPLICATION FOR REVOCATION OR LETTERS OF ADMINISTRATION.]
    
      T' ffiijiiinl wuiAtr of right of admbnniraiion. — Tlie failure of †-lio next o£ >:i;i \o iipr.’y for lellcrs of administration within forty days after the death of the intesialo is known (Code, j 1669), is an implied waiver of hisri'íhi. io ihe administration.
    3. Removal of a cl minisimlor for misconduct. — An intentional misstatement of the mimes of the heirs-at-law, in a petition for the salo of real . estate for the purpose of division, is not such an act of "maladministration of the estate” (Code,, $ 1696), as authorizes the removal of an administrator.
    Appeal from the Píóbató Court of Tuskaloosa.
    IN the matter of'the estáte of William'Forrester, deceased, on the petifcibn of George Forrester for tile revocation of the letters 'of administration' previously granted to William Forrester and David Spradling. The petition was filed on the 1st October, 1859,' and alleged, that the intestate died on the Gtll February, 1859 ; that letters of administration on his estate were granted to the defendants on .the 24th February, T859 ; that the petitioner, as tire only surviving legitimate son of 'the intestate, was entitled to the administration as next of'liiri,-and “ filed his claim as such,” after notice to' the defendants, on or about the 4th April,' 1859 ; that on the'7th May, 1859, the defendants filed’in said probate court a petition, which was sworn to by them,-asking an order to sell'the real estate for the purpose óf division among the heirs-; and that in this petition the defendants falsely stated the names of the lieirs-at-law, intentionally omitting the name of the present petitioner, and purposely concealing the fact that the intestate’s widow was yet -alive, and entitled to dower, in the lands. The probate court sustained a demurrer to the petition, and its decree is-.flow assigned as error.
    W. E. Smith, for appellant.
    E. W. Peck, contra.
    
   A. J. WALKER, C. J.

The petitioner must be held to have relinquished his right, as the next of bin, to the administration, because e did not apply for letters within forty days after tire death of the intestate. — Code, § 1669. The petition, therefore, does not show a right to the removal of the administrators, upon the ground of the preference given by the statute to the next of kin.

The fourth subdivision of section 1690 of the Code makes “the wasting, embezzlement, or any, other maladministration of the estate,” a cause for the removal of an administrator. The petition shows that the administrators have made intentional "misstatements in their application for the sale of the land of the estate for division, as to matters which section 1868 of the - Code requires to be stated in the application; Is the making, of such misstatements a “maladministration of the estate,” which the fourth subdivision of section 1696 of the Code makes a ground for the removal of an administrator ? . The making of such misstatement is certainly an'act of misconduct on the.-part of the representatives of an estate; hut we cannot think it was intended that sucli" an’act should be embraced by the phraseology maladministration of the estate. If it had been so intended, every improper act of an administrator, intentionally done, would have been a cause of removal; and tbe entire third subdivision of section ,1696, which particularizes several kinds of misconduct, would have been entirely unnecessary. We understand “maladministration of the estate” to mean acts affecting'tbe property or assets of- the estate, of which wasting and embezzlement are specimens. — Johnson v. State, 32 Ala. 583.

Neither of the arguments in support of the petition can be- sustained, and we-must affirm the judgment of the court Mow..  