On the Merits.
Rice insists that Smith is not entitled to be appointed as executor because of fraud. In our view of the case it is unnecessary for us to determine whether Smith, the person named in the will as executor, has been guilty of any fraudulent action.
Sections 68, 69 and 71, Tit. 61, Code 1940, provide as follows:
“§ 68. Grant of letters testamentary. — Whenever a will has been admitted to probate in this state, the judge of the court in which the will was probated may issue letters testamentary, according to the provisions of this article, to the persons named as the executors in such will, if they are fit persons to serve as such.”
“§ 69. Persons disqualified as executors or administrators. — No person must be deemed a fit person to serve as executor who is under the age of twenty-one years, or who has been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding is incompetent to discharge the duties of the trust. Nor shall any non-resident of the state be appointed as administrator except he be at the time executor or administrator of the same estate in some other state or territory or jurisdiction, duly qualified under the laws of that jurisdiction.” (Note: Section 70 provides the form of letters testamentary.)
“§ 71. If executors disqualified, administration granted. — If the person named in the will as sole executor is, or if all the persons named therein as executors are, from any of the causes enumerated in the second preceding section, unfit to. serve as executor or executors, letters of administration, with the will annexed, may be granted on the testator’s estate, under the provisions of section 76 of this title.”
It is a settled construction of these statutory provisions that the court cannot deny the application for letters testamentary of a person named in a will as executor except for one of the causes enumerated in § 69. Riley v. Wilkinson, 247 Ala. 231, 238, 23 So.2d 582; Thomas v. Field, 210 Ala. 502, 503, 98 So. 474; Kidd v. Bates, 120 Ala. 79, 83-86, 23 So. 735, 41 L.R.A. 154, 74 Am.St.Rep. 17. See, also, Annotations at 95 A.L.R. 828 and 18 A.L.R.2d 633.
This rule also applies to persons who are given priority by statute, § 81, Tit. 61, Code 1940, as amended by Act No. 635, appvd. Sept. 4, 1951, Acts 1951, p. 1090, in the grant of letters of administration. Griffin v. Irwin, 246 Ala. 631, 633, 21 So.2d 668, 158 A.L.R. 288; Moore v. Strickland, 246 Ala. 624, 625, 21 So.2d 665; Calvert v. Beck, 240 Ala. 442, 443, 199 So. 846; Johnston v. Pierson, 229 Ala. 85, 87, 155 So. 695; Bell v. Fulgham, 202 Ala. 217, 218, 80 So. 39; Nichols v. Smith, 186 Ala. 587, 590, 65 So. 30; Crommelin v. Raoull, 169 Ala. 413, 414 — 415, 53 So. 745; Williams v. McConico, 27 Ala. 572, 574.
In Riley v. Wilkinson, supra [247 Ala. 231, 23 So.2d 588], it is stated as follows: “The fitness of an executor named in a will is controlled by statute. Section 69, Title 61, Code * * *.”
In Kidd v. Bates, supra, the court construed §§ 45, 46 and 48 of the Code of 1896, which, to the extent here pertinent, correspond to our present §§ 68, 69 and 71, Tit. 61, Code 1940, supra, and there held that upon an application for letters testamentary by a person named as executor in a will, the probate court has no authority to refuse to issue letters to such person for any other cause than those specified in the statute. What was there said is of controlling influence here, viz. [120 Ala. 79, 23 So. 736]:
“The theory of counsel for appellants is that the words ‘if they are fit persons *244to serve as such,’ contained in section 45 [§ 68, Tit. 61], indicate a legislative intent to give a very broad discretion to the court in determining what are causes of disability, and who are fit persons to serve as executors, and that section 46 [§ 69, Tit. 61] was intended not to define all the causes of disability which should authorize the rejection of persons who apply for letters, but only to limit this discretion to the extent of forbidding the issue of letters to one who was under 21 years of age, or who had been convicted of an infamous crime, or who, from intemperance, improvidence, or want of understanding, was incompetent to discharge the duties of the trust. If section 45 stood alone, we would be inclined to adopt the construction contended for, and to declare that any cause which rendered the applicant unfit or unsuitable to serve as executor without detriment to the estate and undue advantage to himself would justify the refusal to issue letters testamentary to him. And upon this construction we would have no difficulty in determining that the facts alleged, if true, render the applicant for letters an unsuitable person to discharge the duties of the trust which require him to collect all the debts and other assets of the estate, and preserve them for distribution according to the provisions of the will, since his interests are clearly adverse to the estate, and antagonistic to the legatees and devisees and others interested therein. The decisions-of the courts of all those states the statutes of which vest the court with the power and discretion to determine who are suitable persons to serve as executors so hold, and the correctness of these decisions cannot be doubted. Winship v. Bass, 12 Mass. 199; Drake v. Green, 10 Allen (Mass.), [124], 126; Thayer v. Homer, 11 Metc. (Mass.) [104], 110; Kimball’s Appeal, 45 Wis. 391; In re Gleason’s Estate [17 Misc. 510], 41 N.Y.S. 418. But the several sections of the Code referred to were adopted at the same time, are in pari materia, and must be construed together; and the construction of one, if doubtful, may be aided by a consideration of the words of, and the legislative intent indicated by, the others, and of the evil of the common law intended to be remedied. And a consideration of all the sections and of the common law relating to the subject, which they were intended to modify, leads to a conclusion which is opposed to the construction placed by counsel on section 45. It is 'a rule of statutory construction that a statute in modification or derogation of the common law will not be presumed to alter it further than is expressly declared. The presumption is that the language and terms of the statute import the alteration or change it was designed to effect, and their operation will not be enlarged by construction or intendment. — Cook v. Meyer Bros., 73 Ala. [580], 583; Webb v. Mullins, 78 Ala. [111], 113. The rule of the common law was that all persons might be appointed executors who were capable of making a will. Neither infancy, non-residence, coverture, intemperance, improvidence, ignorance, vice, dishonesty, nor any degree of moral guilt or delinquency disqualified one for the office. Idiots and lunatics were practically the only classes disqualified, and the rule now prevails generally that courts have no discretion in respect to the issue of letters to the persons nominated in the will, unless 'such persons are expressly disqualified, or such discretion is vested by law; and the person appointed by the will cannot be rejected by the court except where the law expressly so provides. 1 Woerner Adm’n, p. 503, et seq.; Schouler, Ex’rs, §§ 32, 33; 1 Williams, Ex’rs (7th Am.Ed.) p. 269; Redf. Wills, pt. 3, c. 2, § 3; Stewart’s Appeal, 56 Me. 300; Re Smith’s Appeal, 61 Conn. 420, 24 A. 273, 16 L.R.A. 538, and notes. Treating these several *245sections of the Code as one statute, and construing accordingly, they not only fail to indicate any legislative intent to abrogate this rule of the common law, and vest a broad discretion in the court to determine what are causes of disability, but they show that such effect was not within the contemplation of the legislature, .and that the only discretion intended to be conferred was that to be exercised in the determination of the existence of those particular causes of disability enumerated in section 46. The evil of the common law intended to be remedied by the statute was that persons were permitted to serve as executors who were clearly unfit to serve as such without undue advantage to themselves and consequent detriment to the estate. The purpose of the statute was therefore not to declare, except indirectly, by the process of exclusion, who were fit and competent persons to discharge the duties of the trust, since the common law declared all persons competent except idiots and lunatics, but to enumerate the causes which should render persons incompetent. In so far as it enumerates causes of disability not recognized at the common law, it must be treated as exclusive, containing all the causes which will authorize the rejection of the persons named in the will, and excluding all others, and as leaving the common-law rule as to competency and fitness unchanged except in the particulars specified. That this was the intention of the legislature is, we think, made manifest by the provisions of section 48, quoted above, which authorizes the grant of letters of administration with the will annexed only when the persons named in the will as executors are, ‘from any of the causes enumerated in the second preceding section (section 46), unfit to serve.’ The probate court has therefore no statutory authority to issue letters of administration with the will annexed unless the person named as executor in the will was under 21 years of age, or had been convicted of an infamous crime, or was incompetent to discharge the duties of the trust by reason of intemperance, improvidence, or want of understanding, except in the event of the death of the executor or his renunciation of the right to act, as provided in sections 51 and 54 [§§ 74 and 77, Tit. 61], This failure on the part of the legislature to confer authority to grant letters of administration with the will annexed, except in the cases mentioned, clearly indicates that no causes of disability which could give rise to the necessity for the grant of such letters, other than those enumerated in section 46, were within the contemplation of the legislature when the act was adopted.”
In the minor’s petition filed by Rice, as guardian, for Rice’s appointment as administrator cum testamento annexo, it is alleged that Smith’s petition for appointment as executor should be denied for the following reasons:
“ * * * [I] f the said Curtis W. Smith should be appointed executor of the estate of Sallie W. Davis, deceased, he would be unable to fairly, impartially, and courageously insist upon the accounting and other relief prayed for in said Bill of Complaint identified as Exhibit ‘A’ and it would be necessary for the Courts to remove him as an unfit and improper person to be the executor of said estate or in the alternative to appoint an administrator, ad litem to appear and defend the litigation now pending for the accounting and setting aside of said fraudulent conveyances hereinbefore identified in this amended petition as Exhibit ‘A’ hereto, and it would be a vain and foolish thing for this Court in the exercise of its power and jurisdiction according to the special statute, applicable to Jefferson County, Alabama, to administer equity jurisprudence, to appoint the said Curtis W. Smith merely for the purpose of *246removing him as an unfit and improper person and that the Court should do that directly, which must appear of necessity to be required to be done indirectly.
* * * * * *
“* * * [T]he appointment of Curtis W. Smith to be executor of the estate of Sallie W. Davis, deceased, would subject this petitioner to imminent peril of such an irreparable injury in that it would deprive this petitioner of the right to have as heir, distributee, or beneficiary, under the Last Will and Testament of said deceased, of exemption in a homestead and personal property accorded to him by statute, and to secure full, complete, and proper accounting of all the real, personal, and mixed property of the estate of Sallie W. Davis without undue cost and expense and litigation, and the appointment of an administrator ad litem, and subject him to imminent peril of irreparable injury which would probably and likely result to him, in the event Curtis W. Smith should be appointed to be the executor of the Last Will and Testament of Sallie W. Davis, deceased.”
The position taken by appellee, as stated in his brief, is as follows:
“The equity jurisdiction of the probate court has been invoked and as said in Gewin v. Shields, supra [167 Ala. 593, 596, 52 So. 887, 888].
“ ‘There is no more common head of equity jurisdiction than to relieve against frauds’.
“If this appellant were executor he would be removed immediately for his fraud. Castleberry v. Hollingsworth, supra [215 Ala. 445, 111 So. 35]. It is then apparent that equity should not lend its powers to do an act which is useless. Dixie Grain Co. v. Quinn, supra [181 Ala. 208, 61 So. 886],
* * * * * *
“ * * * The weight of the evidence is clearly with Appellee and the Court in the exercise of the equity jurisdiction, having resolved the issue of fraud against Curtis Smith, refused to do an utterly useless act by appointing Curtis Smith as executor.
‡ >{c íj« % ;jc i|s
“Your Appellee further urges strongly that the evidence and pleadings adduced in the court below strongly support the decree rendered in that there was substantial evidence that the named executor was by reason of his ‘improvidence’, as that term is used in Section 69, Title 61, Alabama Code of 1940, rendered unfit to serve as executor. His fraudulent collusion with his wife and his wife’s mother, subsequent to the death of Sallie W. Davis, to despoil the estate and aid and assist them in retaining personal property and lands which of right belonged to the Estate of Sallie W. Davis, even to the extent of jointly employing counsel to defend litigation brought in behalf of the estate to recover such lands and personal property, indicated a lack of care and fitness which, if he were appointed executor, would endanger the assets of the estate, if he were so naive as to believe such conduct would be consistent with his duty to protect the estate, and his nomination for executor should be disregarded by the Court below under authority of Nichols v. Smith, 186 Ala. 587, 65 So. 30.
# % # * S¡C ‡
“ * * * The Court, in the exercise of its equitable jurisdiction which was invoked, would not do the vain thing of appointing the executor solely for the purpose of removing him on account of his frauds. Beyond all question it would have been a vain and useless procedure for the Court below to have appointed Curtis Smith as executor, thereby entailing much expense upon *247the estate, when it was self-evident that the Court in the exercise of its equitable jurisdiction would be compelled to remove him eo instanti.
* * Í¡C * *
“Appellee respectfully contends that there can be no doubt that under the evidence presented in the Court below and considered by the Probate Court, in the exercise of its equitable powers, Curtis Smith was and is a party who ‘from his conduct or character there is reason to believe that he is not a suitable person to have the charge and control of the estate.’ — Title 61, Section 178, Code of Alabama of 1940.
“Such being true, it would be the solemn duty of the Probate Court, or a court of Equity, to remove him from the administration of the estate eo instanti in obedience to the provision of Title 61, Section 178, Code of Alabama of 1940, if he were appointed. ‡ íH íjs >>
The court’s decree does not indicate the basis of its refusal to appoint Smith as executor. Whether the court followed the argument here made by appellee that it would have authority to remove Smith as executor because of his alleged fraud and, therefore, it would be doing a useless thing to appoint him and then remove him, or that Smith was incompetent to serve because of his “improvidence”, is not shown. However, it is our view, based on decisions of this court of long standing, that neither ground justifies the court’s refusal to appoint Smith.
Whether the evidence is sufficient to support Smith’s removal under § 178, Tit. 61, is not the question before us. We are concerned only with his right to appointment. Unless disqualified on one of the grounds set out in § 69, Tit. 61, supra, his application for appointment cannot be denied. Riley v. Wilkinson, supra; Thomas v. Field, supra; Kidd v. Bates, supra. The probate court is “without discretion to consider any other disqualifications than those set down in § 69”. Moore v. Strickland, supra. In Nichols v. Smith, supra [186 Ala. 587, 65 So. 32], it was held that “no alleged ground of disqualification can be considered, except such as are named in the statute”. The fraud alleged against Smith is not one of the statutory grounds. Whether it should be is a matter which addresses itself to the legislature.
We are unable to agree with the argument that Smith was properly denied appointment because of his “improvidence”, which is one of the statutory grounds, for disqualification. § 69, Tit. 61, supra. Smith is charged with fraudulent conduct and the pleadings and evidence relate to that charge. We do not think the evidence establishes that Smith, from improvidence, as that term is used in § 69, is incompetent to discharge the duties as executor. What was said in Nichols v. Smith, supra, seems significantly applicable here:
“ * * * [W] e have cases holding that on the application of a person standing in the statutory preferred list no account may be taken of his general moral unfitness.. Williams v. McConico, 27 Ala. 572; Crommelin v. Raoull, 169 Ala. 413, 53 So. 745. * * *
“Other statutory disqualifications finding no substantial support in the evidence, appellant’s proposition is that the probate court should have held appellee to be ‘improvident’ within the meaning of the statute, and anyhow that his lack of appeal to the court’s sense of moral fitness was a disqualification. Improvidence means a lack of care and foresight, of forehandedness, of thrift, of business capacity. It does not mean, however, that the capacity for care and foresight must needs to be proved by the accumulation of any considerable estate, for men are largely creatures of time and chance. Improvidence in this connection means only that probable lack of *248care and foresight in the management of the estate’s only asset which would endanger its safety in case administration should be committed to appellee. * * * ” (Emphasis supplied.)
“Improvidence” is thus defined in 42 C.J.S., p. 472:
“In general, a lack of business capacity, care and foresight, forehandedness, prudence, or thrift; and, more specifically, a want of care and foresight in the management of property. The term refers to habits of mind and conduct which become a part of the man and render him generally and under all ordinary circumstances unfit for the trust or employment in question ; but does not necessarily imply a failure to accumulate any considerable estate.”
Webster’s New International Dictionary, 2d Ed., defines “improvidence” as “want of foresight or thrift”.
See, also, Griffin v. Irwin, supra [246 Ala. 631, 21 So.2d 671], where the meaning of “improvidence” is discussed and where it is said that “incompetence must be established by clear and convincing-evidence to defeat the right to letters.”
The fact that the probate court of Jefferson county has equity jurisdiction in the administration of estates, Act No. 633, appvd. July 10, 1940, Gen. Acts 1939, p. 1000, Code 1940, Tit. 62, §§ 181(1)-181 (7), Cumulative Pocket Part, supra, does not alter the exclusiveness of the disqualifying grounds set down in §' 69, Tit. 61. Priority of right to appointment given by statute, whether as executor or as administrator, is controlling so long as the one having such statutory preference is not disqualified on one of the grounds set forth in § 69. Authorities, supra.
It follows, from what we have said, that the decree is due to be reversed and the cause remanded. So ordered.
Motion to dismiss denied.
Motions to strike and petition for certiorari denied.
Reversed and remanded.
SIMPSON, MERRILL and SPANN, JJ., concur.