Feltz v. Clark
| Decision Date | 30 April 1843 |
| Citation | 23 Tenn. 79 |
| Parties | FELTZ v. CLARK. |
| Court | Tennessee Supreme Court |
At the September term, 1842, of the county court of Dyer county, Pleasant Feltz presented his petition, verified by affidavit, praying to be appointed administrator of the estate of his deceased uncle, William Feltz. The prayer of this petition was refused, and the petition dismissed. The petitioner appealed to the circuit court. At the October term, 1842, Harris, judge, presiding, the judgment of the county court was affirmed. The petitioner appealed in error to the supreme court. The bill of exceptions shows that William Feltz and his wife, Priscilla, died intestate and without issue, in the county of Dyer, leaving considerable personal estate; that the only surviving brother, Henry Feltz, a citizen of Virginia, by power of attorney, dated 7th September, 1837, authorized and empowered William Sampson, of Dyer county, to institute all proper means to recover his distributive share of the estate of his deceased brother; that, in promotion of this object, Sampson procured the county court, in 1838, to appoint Henderson Clark administrator; that the following order was recorded: “Ordered by the court that Henderson Clark shall be appointed administrator of the estate of William Feltz, and Priscilla Feltz, deceased, and enter into bond for $2,000, payable on condition as the law directs, and took the necessary oath as administrator;” that Clark thereupon gave bond in the penalty of $2,000 for the due and legal administration of the effects of Priscilla Feltz, deceased; that no bond was given for the administration of the estate of William Feltz, deceased; that the records of the county court of Dyer showed that, in the actual administration of said estate, the estate of William and Priscilla was included, and that Clark had discharged the debts, and paid three of the distributees their respective shares. The bill of exceptions shows, also, that the petitioner was a nephew of the deceased, William Feltz, and his next of kin resident in the State.
A. W. O. Totten, for petitioner. It does not appear in the order appointing Clark administrator that the court had jurisdiction or power to make the order.
1. The record should assume all the facts necessary to give it validity, viz., that the decedent died intestate, being a resident of Dyer county; or, if a non-resident, having effects there; and that Clark was of kin or a creditor. Unless these facts do exist the appointment is void for want of jurisdiction.
It is a proceeding in rem in a court of record, and the action of the court can only appear by its record; and, if that record do not assume the facts above recited, the power of the court does not appear. Nelson's Lessee v. Griffin, 1 Yerg. 628; 3 East, 129.
Clark administered on Wm. Phelps' estate; the intestate is Wm. Feltz; whether one is administrator is to be tried by the record.
2. But if the proof of these facts may be in pais, and not by the record, yet the court did not exercise its power to grant the administration, and no appointment was in fact made, because no bond was taken.
By the act of 1794, ch. 1, sec. 47 (), it is provided “that the county courts shall and may, within their respective counties, take the probate of wills,” etc., “and the said courts shall and may make orders for issuing letters testamentary and letters of administration, which letters shall be signed and issued by the clerk of said court.” N. & C. 708. The letters of administration should be only copies of the order, neither more nor less. 1 Yerg. 628. The act of 1715, ch. 48, sec. 5, provides that the clerk shall not issue “letters of administration, without the administrator has taken the oath, etc., and also has given sufficient bond, with two or more able sureties, taken before the county court, respect being had to the value of the estate,” etc. And the 4th section of the same act provides that no one shall enter upon the administration of any deceased person's estate without letters of administration, etc., under a penalty.
It would seem, then, that, as no bond was taken and approved of by the court, its action was imperfect and incomplete, and it did not exercise its power.
This principle seems to be acknowledged in the case of Martin v. Peck, 2 Yerg. 298, where it was held that the assent of an executor to a separate legacy, he not having proved the will and entered into bond with sureties, will not vest the legal title in the...
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