Cunningham v. Thomas

STONE, J.— If the averments of the petition in this case be true, the estate of Mr. Cunningham was seriously injured by the decree rendered in favor of Thomas, administrator de bonis non of the estate of Stallworth, against Mrs. Cunningham, as executrix of Cunningham’s will. Still, we feel bound to affirm the decree of the Probate Court, sustaining the demurrer, and dismissing the petition. The proceedings, though possibly irregular in some respects, were not void; and hence they could not he vacated in a collateral proceeding by petition. When Thomas was appointed- administrator de bonis non, more than forty days—in fact, years had elapsed since the death of Mr. Stallworth. No one, then, had the right to claim the administration under the statute.-—Code of 1876, §§ 2350-1; Davis v. Swearingen, 56 Ala. 31. No cause is shown why Thomas was disqualified -or incompetent to hold the trust, and the motion to vacate the appointment on that account was properly overruled. The failure of the administrator to execute bond in the penalty which had been previously prescribed, was mere irregularity, and did not render the appointment void.—Ex parte Maxwell, 37 Ala. 362. The final decree rendered against Mrs. Cunningham recites enough to give the court jurisdiction to state an account against her, and to audit and decree upon the account, after it was stated. The recital affirms that Mrs. Cunningham had proper notice that the account had been filed, of the day set for settlement, examining and auditing the account, &c. The decree then proceeds in regular and formal manner to ascertain the balance in the hands of her testator unaccounted for, and decrees the same against the estate of her testator in her hands to be administered. This is sufficient in a.collateral attack, such as this is.—Code of 1876, § 2590, et seq.; Blackwell v. Vasthinder, 6 Ala. 218; Howard v. Howard, 26 Ala. 682; Lyon v. Adam, 31 Ala. 234; Dow v. Whitman, 36 Ala. 604. The appointment of the guardian ad litem, and his acceptance, are sufficient in a probate court proceeding, even if the [164] present petitioner stood in a position which would authorize-her to raise the objection.—Stabler v. Cook, 57 Ala. 23. The decree of the Probate Court is affirmed.