Ex parte Due

• Decision Date: 12 January 1898
• Citation: 23 So. 2,116 Ala. 491
• Parties: EX PARTE DUE.
• Court: Alabama Supreme Court

23 So. 2

116 Ala. 491

EX PARTE DUE.

Supreme Court of Alabama

January 12, 1898

Application by M. N. Due for writ of prohibition. Denied.

Brickell C.J., dissenting.

Gordon Macdonald, G. P. Zimmerman, and F. W. Lull, for petitioner.

Tompkins & Troy, for defendants.

PER CURIAM.

Pending a contest respecting the validity of a will of one Tulane, in the probate court of Elmore county, the judge of the court by authority of section 2020 of the Code, appointed certain persons as special administrators, authorizing the collection and preservation by them of the goods of the deceased until letters testamentary or of administration should have been duly issued. The statute provides that every such special administrator has authority to collect the goods and chattels of the estate and debts of the deceased, and secure and preserve the same, etc., and for such purpose may maintain suits as administrator. His authority, as the statute provides, ceases upon the grant of letters testamentary or of administration, when, on demand, he must deliver over the assets to the rightful executor or administrator. He is required to execute a prescribed bond, in a prescribed mode as such special administrator. It appears that, when the matter of the appointment of these special administrators was before the probate court, upon the motion of one claiming to be a legatee under the will, the proponents of the will appeared before him, and opposed the appointment, and, upon hearing the objections, the same were disallowed by the judge, and the appointment made; whereupon the objectors tendered to the judge what purported to be a bill of exceptions reserved to his action, for his signature, and tendered security for costs of an appeal to the circuit court of Elmore county for his approval. The judge declined to sign the bill of exceptions or to approve the security for costs. Whereupon the proponents presented their application for the writ of mandamus to compel the signing of the bill and approval of the security to the Honorable N. D. Denson, judge of the Fifth judicial circuit. At the time this application was made the persons appointed special administrators had not qualified by giving the required bond, and the time fixed by the judge in his order of appointment for giving the bond had not expired. Letters of administration had not been issued to them. The application for mandamus, showing the facts herein stated, contained, in addition to the prayer for a mandamus or other...