Winter v. London

• Decision Date: 06 February 1893
• Citation: 12 So. 438,99 Ala. 263
• Parties: WINTER ET AL. v. LONDON.
• Court: Alabama Supreme Court

12 So. 438

99 Ala. 263

WINTER ET AL. v. LONDON.

Supreme Court of Alabama

February 6, 1893

Appeal from circuit court, Montgomery county; John P. Hubbard Judge.

Action by Alex. London, administrator, against Mary E. Winter and others for breach of a supersedeas bond. Judgment for plaintiff, and defendants appeal. Affirmed.

Gordon McDonald, for appellants.

Tompkins & Troy, for appellee.

HARALSON J.

Section 2013 of the Code provides that "courts of probate within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate," in five specified instances, the third of which is: "Where the intestate, not being an inhabitant of the state, dies out of the county, leaving assets therein." The conditions on which the letters of administration were granted to plaintiff were exactly in accordance with this section of the Code; and there is no proof in the record that the plaintiff's intestate owned any property, at the time of his death, outside of Montgomery county, in this state, or that any administration was ever had, elsewhere on his estate. By the agreed state of facts on which the case was tried, it is shown that plaintiff's intestate died a resident citizen of the state of New York in the year 1872, and at the time of the grant of letters of administration to plaintiff by the probate court of Montgomery county, in 1887, and at the time of the death of plaintiff's intestate, the property owned by deceased and claimed to be assets of his estate, was three shares of the capital stock of the Montgomery Gaslight Company,-a private corporation, having its place of business in the city and county of Montgomery, Ala.,-amounting, with the accrued dividends thereon, to $500, the certificates for which plaintiff held at the time he was appointed administrator that the foregoing facts appear and are correctly stated in plaintiff's application to said probate court for letters of administration; that the letters, on their face, are correct and regular; and that plaintiff qualified as such administrator, and has ever since been acting as such. The defendants below contended-and that is the question they present for our decision-that the grant of letters of administration to plaintiff by said probate court was void, on the ground that his intestate died in the state of New York, of which state he was a resident citizen at the time of his death, and no facts existed authorizing any court...