Hooper v. Scarborough

BRICKELL, C. J. 1-2. The death of Harris did not operate a vacancy in the administration which had been granted to him and Purifoy. The statute provides, that if [514] one of two joint executors, or administrators, dies, resigns, or is removed, no other must be appointed, but the remaining executor, or administrator, must complete the administration. — Rev. Code, § 2044. Nor did the absence of Purifoy from the State work a renunciation or revocation of his authority as administrator. It may, or may not, have been cause for his removal, but until he was removed, and his letters revoked, by force of the statute, he remained in the office, clothed with its authority, bound to the performance of its duties. The statute very clearly defines the only cases in which the court of probate has jurisdiction to grant administration de bonis non, in these words: “ If the sole executor, or all of the executors, or administrators, die, resign, or are removed, the Probate Court having jurisdiction of the estate must grant letters of administration with the will annexed, or of the goods and chattels, rights, &c., unadministered, to the person entitled thereto, as in cases of intestacy.” — Rev. Code, § 2043. This statutory provision simply conforms to the common-law principle, that a grant of administration, made by a proper tribunal, clothed the administrator, or executor, with the legal title to all the personal assets, and with exclusive authority to collect, receive, and possess them, which were within the jurisdiction of which the grant was operative ; and therefore it was essential to the validity of a subsequent grant, that the first should have terminated.—Matthews v. Douthitt, 27 Ala. 273; Rambo v. Wyatt, 32 Ala. 263; Nelson v. Boynton, in manuscript; Griffith v. Frazier, 8 Cranch, 9. 3. The point suggested, that though the grant to him be invalid, when it is drawn in question collaterally, and third persons dealing with him have interests involved, he may be regarded as administrator defacto, was considered in Griffith v. Frazier, (supra,) and it was held, as the grant was a nullity, the acts of the administrator could stand on no higher ground than those of any other person assuming authority to which he was not entitled. There can be no question, that under our statutes, as at common law, a grant of administration vests in the administrator the whole personal estate. As to legatees, or distributees, in a court of equity he is deemed to hold in’ trust, and is charged as a trustee. But he has the whole legal title, and except so far as the statute restrains his power of disposition, is as much the legal proprietor, as the testator or intestate was during life. 4. There are officers de jure, and de facto, and on principles of public policy, for the protection of the State and the [515] citizen, tbe acts of tbe latter are recognized. It is a misuse of these terms to apply them to tbe ownership of property. There can not be a defacto owner, having power and authority to divest the title of him in whom the law has vested it. The theory on which the principle applicable to de facto officers proceeds is, that they are trespassers and intruders, but having the appearance of being rightful officers, their acts are, as to the State and the citizen, who are compelled to rely on their performance of duty, recognized as valid. The principle can have no application to the ownership of property, for the law will not permit the rights of the true owner to be affected by the acts of a wrong-doer. The contrary decision in Green v. Scarborough (49 Ala. 137), is erroneous, and must be overruled. It is not probable the other questions raised by the bill of exceptions will arise on another trial, and we pass them over. 'The judgment must be reversed, the nonsuit set aside, and the cause remanded.