Kling v. Connell

• Decision Date: 07 February 1895
• Citation: 105 Ala. 590,17 So. 121
• Parties: KLING ET AL. v. CONNELL ET AL.
• Court: Alabama Supreme Court

17 So. 121

105 Ala. 590

KLING ET AL. v. CONNELL ET AL.

Supreme Court of Alabama

February 7, 1895

Appeal from probate court, Mobile county; Price Williams, Jr. Judge.

Petition by A. Kling and others, sureties on the official bond of Joseph Espalla, Jr., general administrator, to quash executions issued against them in favor of E. C. Connell and others, the heirs of Mrs. E. B. Rupert. From the granting of a motion by the heirs to strike out the petition, petitioners appeal. Affirmed.

The appellants, A. Kling and others, sureties on the official bond of Joseph Espalla, Jr., the general administrator of Mobile county, filed their petition in the probate court, and asked that certain executions issued against them in favor of the appellees, E. C. Connell and others, heirs of Mrs. E. B Rupert, be quashed. The petition averred that on May 12 1891, Joseph Espalla, Jr., who was at the time the general administrator of Mobile county, with the petitioners as sureties on his official bond, applied to the probate court of Mobile county for letters of administration on the estate of Mrs. E. B. Rupert, and that on May 13, 1891, letters of administration upon said estate were issued to him, and he thereupon took charge of the assets of said estate, and undertook to administer the same. The petition of Joseph Espalla, Jr., for letters of administration upon the estate of Mrs. E. B. Rupert, alleged that Mrs. E. B. Rupert, at the time of her death, was an inhabitant of the county of Mobile and the decree granting the letters of administration to Joseph Espalla, Jr., recited the fact that Joseph Espalla had represented in writing and made oath that Mrs. Rupert was an inhabitant of Mobile county at the time of her death. The petition averred, however, that at the time of the death of Mrs. Rupert, and for a long time prior thereto, she was an inhabitant and resident of Baldwin county, and that she left read and personal property of large value in said county. It was further averred in the petition that Joseph Espalla, Jr. as such administrator, made final settlement of the administration of said estate, and on said final settlement there was a decree of $1,572.51 rendered against him, in favor of the heirs of Mrs. E. B. Rupert, deceased; that on this decree execution was issued against Joseph Espalla, Jr. and returned "No property found"; that subsequently separate executions were issued in favor of each of the distributees against Joseph Espalla, Jr., as principal, and the petitioners as sureties on the administration bond, and that in these executions there was included the costs which accrued on the final settlement of said estate. The petitioners then prayed that these latter executions be quashed, on the grounds: (1) That the probate court of Mobile county had no power, authority or jurisdiction to confer upon Joseph Espalla, Jr., as general administrator of Mobile county, the administration of the estate of Mrs. E. B. Rupert, deceased, who was an inhabitant of Baldwin county, and died in New Orleans, La. (2) That this was not one of the estates to which they were liable for the acts of said general administrator under their bond. (3) That the decree appointing said Espalla as such administrator was obtained by fraud, by Espalla misrepresenting the county of the residence of Mrs. Rupert. (4) That said execution could not be legally issued against one of the sureties, who died before the final settlement of the administration. The distributees of the estate, and the heirs of Mrs. E. B. Rupert, deceased, moved the court to strike this petition from the file, on the grounds (1) that the power of the probate court to appoint an administrator cannot be assailed except in a direct proceeding; (2) that neither the principal nor the sureties on the bond of the administrator, after the principal has obtained possession of the assets of the estate and converted them, can be heard to complain of the regularity and validity of the appointment. The court granted this motion of the distributees...