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[Pruett et al. v. Pruett.]

and Mrs. Pruett as executrix. It was probated on the 8th day of April, 1901, and on the thirtieth day after probate, letters testamentary were issued to the petitioners. On the thirty-first day after probate, the letters sought to be revoked in this proceeding, were issued to Mrs. Pruett.

"The common law traced the title and authority of an executor to the will. Without regard to the time of its probate, his title and authority were by relation referred to the death of the testator. The executor was regarded, not as an officer of the court of probate, but rather as a private trustee, nominated and appointed by the testator, and charged with such duties as the testator declared. Probate was essential only to establish, by judicial sentence, his right and authority. Befere probate he could do nearly all the acts he could rightfully do after probate, except the institution and prosecution of suits, in which profert of probate and letters testamentry was necessary."-Brocks' Admr. v. Frank, 51 Ala. 91, 92. So, also, in some jurisdictions it is a rule of the common law that where there are several executors and one renounces and the others prove the will, the renunciation is not binding on him so long as one or more of his co-executors continue in office, but he who renounced may at any time afterwards come in and administer.-11 Am. & Eng. Enc., Law (2d ed.), 757. In others, the rule seems to be this: In the absence of statutory regulation to the contrary, an executor named in a will is not bound to take probate when his co-executors do; he may come in at any time afterwards and take letters testamentary; and even should he renounce, though he cannot in that case take letters testamentary during the life of such as prove the will, yet should he survive them, he is entitled to administration of the estate and to letters testamentary.-Judson v. Gibbins, 5 Wend. 224; 1 Woerner on Administration, § 234. These rules clearly have application only in those jurisdictions where the common law prevails, that an executor derives his authority exclusively from the will and not from his letters testamentary, and have no application in this jurisdiction, where the settled rule is, that letters testamentary must be granted, be

[Pruett et al. v. Pruett.]

fore an executor is legally invested with any authority over the assets of the testator's estate (Ward v. Cosby, 76 Ala. 557); and the statutes regulating the issuance of letters testamentary and administration, create preferences which must be exercised by the party preferred within the time fixed by the statutes.-Keith v. Proctor, 114 Ala. 676; Wheat v. Fuller, 82 Ala. 572; Forrester v. Forrester, 37 Ala. 398; Curtis r. Williams, 33 Ala. 570.

Sections 52 and 53 of the Code required Mrs. Pruett to apply for letters within thirty days after probate of the will, and her failure to do so lost to her the right to have letters as against her co-executors who did make their application within the time prescribed. In other words, her failure to exercise the right conferred by the provisions of these statutes and the exercise of that right by the petitioners, conferred upon the latter the exclusive right to letters testamentary; and so long as the letters issued to the petitioners remained unrevoked, the court was without jurisdiction to grant the letters to Mrs. Pruett.-Matthews v. Daughette, 27 Ala. 273; Bean v. Chapman, 73 Ala. 140; Nelson v. Boynton, 54 Ala. 368; Coltart r. Allen, 40 Ala. 155; Gray r. Cruise, 36 Ala. 559. This being true, the grant of letters to her was void and the petition should have been granted and her letters revoked. The grant of letters being void, it was the duty of the probate court to revoke them. Having the inherent jurisdiction to make the records speak the truth, it unquestionably had the right to hear and determine and grant the petition in this case, although it be conceded (a question we do not here decide) that the city court had assumed jurisdiction of the administration of the estate.

A decree will be here entered revoking the letters testamentary to Mrs. Pruett and reversing the decree of the probate court denying the petition.

Reversed and rendered.

[Alabama Great Southern Railroad Co. v. Crocker.]

Alabama Great Southern Railroad Co. v. Crocker.

Action by an Infant against a Railroad Company for Damages for Personal Injuries received on a Turntable.

1. Negligence; complaint; demurrer.-In an action by an infant against a railroad company for damages for injuries received while playing on defendant's turn-table, the first count of the complaint alleges that the defendant company kept a turn-table at its depot, in a public and open place, where many people were accustomed to pass and children resorted to play, that it was attractive to children of tender years, and dangerous, because it was easily turned and of great weight, and a person who was upon it while turning would be in danger of being injured; that plaintiff, an infant of six years, went upon the turn-table, and, while playing with companions of like tender years, had his hip and back caught in or by the turn-table, and was badly mashed, bruised and lacerated; that defendant well knew the circumstances, but negligently left said turn-table unlocked, uninclosed, or otherwise guarded. Held: Such count is not subject to demurrer on the ground that it shows that plaintiff was a trespasser, and fails to charge defendant with any willful or wanton injury to plaintiff; and that it fails to state any cause of action against defendant.

2. Same; same; same.-In an action against a railroad company by an infant for damages for injuries received while playing on defendant's turn-table, a count of the complaint alleges that defendant kept a turn-table at its depot, an open and accessible place, where children resorted to play; that defendant knew, or had reason to know, that children resorted, or would resort, there to play; that it was a machine or structure dangerous for children to play on; that notwithstanding this knowledge on the part of the defendant, it negligently allowed the turn-table to remain unattended, uninclosed and unguarded, so that children could easily gain access to and move or turn the same; and that plaintiff, a child of six years, received the injuries complained of while playing thereon. Held: That such count is not subject to

[Alabama Great Southern Railroad Co. v. Crocker.]

demurrer, on the ground that it shows that plaintiff was a trespasser, and fails to charge defendant with any willful or wanton injury to plaintiff; and that it fails to state any cause of action against defendant.

3. Same; same; same.-In an action by an infant against a railroad company for damages for injuries received while playing on defendant's turn-table, a count of the complaint alleges that defendant kept a turn-table at its depot, in an open and accessible place, where children resorted to play; that defendant knew that many children resorted there to play; that the turn-table was a dangerous machine or structure for children, and that several children had been injured thereon, but nevertheless defendant negligently allowed the turn-table to be unfastened, uninclosed and unguarded, so that children could easily gain access and turn the same; that plaintiff was injured there, and the injury was caused by the negligence of defendant in leaving the turn-table unfastened and unguarded, though it was aware of the above stated facts. Held: That such count is not subject to demurrer on the grounds, that it shows that plaintiff was a trespasser, and fails to charge defendant with any willful or wanton injury to plaintiff; and that it fails to state any cause of action against defendant.

4. Complaint; pleas; demurrer.-In an action by an infant against a railroad company for damages for injuries received while playing on defendant's turn-table, where the complaint alleges, in substance, that defendant kept a turn-table in a public, open place, where many people were accustomed to pass, and children to play; that said turn-table was dangerous; that several children had been injured while playing thereon; that although defendant was aware of these facts, it negligently allowed the turn-table to be unfastened and unguarded; that plaintiff, an infant, of six years, while playing thereon, was mashed and bruised by having his hip and back caught in the machine; and that the negligence of the defendant caused the injury, pleas (1) that the turn-table on which plaintiff was injured was constructed on the land of defendant, and was used by defendant as a necessary adjunct in its business; that defendant did not invite plaintiff to go upon the table, and at the time of the accident had no knowledge that plaintiff was there; that the turn-table was properly constructed; and, further, (2), that at the time of receiving the injury plaintiff was a trespasser and the injury was not caused by wanton or willful negligence on the part of the defendant, present no defense, and are subject to de

murrer.

[Alabama Great Southern Railroad Co. v. Crocker.]

5. Affirmative charge; when should not be given. In an action by an infant against a railroad company for injuries received while playing on defendant's turn-table, it is error to give the affirmative cnarge at the request of the plaintiff, if the evidence does not establish as a legal conclusion that the turntable, having regard to its structure and situation, was of a kind which if left unfastened or unguarded was likely to attract children, or that the danger was so apparent that the defendant ought, in the exercise of ordinary prudence, to have anticipated that children would resort to the machine and be injured.

APPEAL from the County Court of Tuskaloosa,
Tried before the Hon. J. J. MAYFIELD.

The
In

This was an action brought by the appellee, Robert Crocker, a minor, by his next friend, against the Alabama Great Southern Railroad Company, to recover damages for personal injuries. complaint as amended contained three counts. the first count the plaintiff sued for $2,000 damages for that on February 6, 1898, the said Robert Crocker being then "six years of age, went upon the turn-table kept by the defendant at its depot and yards in the city of Tuscaloosa, Alabama, and while playing upon it with companions who were of like tender years, had his hip and back caught in or under the same, and badly mashed, lacerated and bruised, to his damage as aforesaid; and plaintiff avers that the said turn-table was attractive to children of tender years, who did not know its dangerous character, but that the same was dangeroas for children to play upon, because it was easily turned, and, on account of its construction and great weight a person being upon it while it was turning, was liable to be caught under the frame work thereof, and crushed or otherwise injured, and plaintiff avers that said turn-table was kept in a public, open place, where many people were constantly passing and repassing, and many children resorted to play, and the defendant well knowing these facts, carelessly and negligently left said turn-table unlocked, uninclosed or othe wise guarded; wherefore plaintiff sues."

The second count of the complaint was as follows: "The plaintiff claims of the defendant the further sum

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