Wood v. Legg

• Decision Date: 07 November 1890
• Parties: WOOD ET AL. v. LEGG ET AL.
• Court: Alabama Supreme Court

8 So. 342

91 Ala. 511

WOOD ET AL. v. LEGG ET AL.

Supreme Court of Alabama

November 7, 1890

Appeal from chancery court, Fayette county; THOMAS COBBS Chancellor.

The appellee, administrator de bonis non of Towns' estate, filed his bill in this cause against Wood and Rice as administrator of Darden's estate; against M. F. Rice as one of the sureties on Darden's administration bond against the heirs of said Darden; and against the heirs at law of said John W. Towns; all of said Towns' heirs being brought into court by publication, and a decree pro confesso being rendered against each one of them. The bill prayed, among other things, that the court below take jurisdiction of the administration of Towns' estate; that Wood and Rice, as Darden's administrators, be required to file their accounts, vouchers, etc., for a final settlement and distribution of said Darden's administration and management of John W. Towns' estate; that on the final settlement prayed for, a decree might be rendered against said Darden's administrators, in their representative capacity, and in favor of appellee, as administrator de bonis non, etc.; "and that said decree be also against said M. F. Rice, as one of the sureties on the bond of said Darden, as administrator of said Towns' estate;" and for general relief. Appellants demurred for want of jurisdiction and also answered the bill. On final hearing, the chancellor granted the relief prayed, and decreed that the estate of Darden, and the surety on his bond as administrator of Towns' estate, be held to a strict account for the administration of Towns' estate. The respondents appeal, and assign the decree of the chancellor on the demurrer and his final decree as error.

Martin & McEachin and John B. Sanford, for appellants.

McGuire & Collier, for appellees.

COLEMAN J.

The probate court is without jurisdiction to render a decree against the surety of a deceased administrator in chief, and the administrator de bonis non in such case may resort to a court of equity, in the first instance, against the personal representative of the deceased administrator in chief, and his sureties as such, and compel a final settlement of his administration. Martin v. Ellerbe, 70 Ala. 340; Stallworth v. Farnham, 64 Ala. 259; Glenn v. Billingslea, Id. 351. The demurrer to the bill as a whole was properly overruled.

The important question in the case is the right of an administrator de bonis non to elect to charge the administrator in chief with the proceeds of the land of his intestate's estate sold by him at private sale, and whether a court of equity, ex mero motu, can elect to ratify such illegal sales of land, and thereby convert the proceeds thereof into assets of the estate of decedent. The bill alleges, and it is admitted, there are no debts due and owing from the estate; and nothing remains but to distribute whatever may be recovered from the administrator in chief on a final settlement of his administration. Under our statute as at common law, the title to lands, on the death of the ancestor, descends immediately to the heir or next of kin, but the descent may be intercepted and the possession claimed and held by the personal representative for the purposes of administration. Nelson v. Murfee, 69 Ala. 603. To suspend or destroy the heirs' right to the possession of the inheritance, the personal representative must actually take possession, or must assert his right, and follow it with the means necessary to that end. In the absence of action, effective action, the heir succeeds to the inheritance, with all its common-law incidents. Calhoun v. Fletcher, 63 Ala. 580, 581, and authorities. A sale made by an administrator, not in substantial compliance with the statute, is coram non judice, and void; and the heirs may sue and recover in ejectment. Robertson v. Bradford, 70 Ala. 387, and authorities. Such a sale does not create a cloud on the title. Wilburn v. McCalley, 63 Ala. 445. The right of an administrator to maintain ejectment for land, and recover rents, is the result of statutory law,-rests upon the liability of lands to be applied in satisfaction of the debts of the decedent. If the lands of a decedent are not necessary for the payment of debts of...