Gilmer's v. Purgason

BRICKELL, J. The only question presented by this record is, whether an executor, obtaining letters testamentary during the recent war, from a court of probate in this State having authority to grant them, who instituted suit for the recovery of the assets of his testator, can continue such suit by virtue of new letters granted to him during its pendency, and since the organization of the present state government, by the court of probate having jurisdiction ? This question must be answered affirmatively. In Bibb & Falkner v. Avery (45 Ala. 691), it was held by this court, that the probate of a will, and the grant of letters testamentary, obtained in this State in 1865, during the war, were to be regarded as the judicial acts of a foreign court, under a foreign government, not conferring on the executor the right to maintain suits in the courts of the present government. To maintain such suits, the executor must obtain new letters from the proper jurisdiction of the present government. These new letters, when obtained, it was declared, should be considered in the nature of an administration de bonis non. Treating such new grant as an administration de bonis non, the legal consequence is the right of the administrator de bonis non to continue and prosecute in his own name all suits commenced by the predecessor in the administration, for the recovery of the assets of the testator. On him the title to such assets devolves by operation of law. The rulings of the circuit court were adverse to this view ; and' the judgment of nonsuit is therefore set aside, and the cause remanded.