Plowman v. Henderson

BRICKELL, C. J.— The present appellants are not in a position to inquire into and dispute the validity of the grant of administration to Albert W. Plowman. The bond into which they voluntarily entered, and which is matter of record in the Court of Probate, affirms the validity of the grant, and enabled the principal to gain access to the trust, assume its authority, and take possession of the assets of the deceased. Now that he has abused the authority with which they asserted he was clothed, wasted the assets he received, and from his infidelity, they, or those, who relied on the bond as a security, must be involved in loss, they cannot escape from liability by a disputation of the fact the bond affirms. Sprowl v. Lawrence, 33 Ala. 674; Williamson v. Wolf, 37 Ala. 298. “It is well settled that no one who has bound himself by an instrument under seal for the fidelity and good conduct of another in a private trust or public duty, can escape from the liability thus assumed under cover of an allegation that his principal was not duly designated or elected, or was subject to some legal disqualification which should have prevented him from accepting or administering the office.”—2 Smith Lead. Cases 708. The precise question arose in Cutler v. Dickinson, 8 Pick. 386, and it was held the sureties in an administration bond are estopped by the recitals of the bond from denying the regularity of the'appointment of their principal. We cannot concede, however, that the grant of administration is void, because of the relationship existing between the administrator and the judge by whom it was granted. In our system, the grant of administration is formal, and, of course, unless a contest as to the right of administration arises, no right is determined, no interest is concluded.. The Court, in the absence of a contest, simply appoints an officer or agent of its own, or whom the law devolves the ownership of the personal assets of the decedent. The judge of probate could well have declined to appoint to the trust his son; and if he had indulged proper considerations of judicial delicacy, would not have appointed him. He was without a right to or interest in the administration, and there was a manifest impropriety in his appointment. The565 judge stripped himself, by the appointment, of jurisdiction of every proceeding in the course of the administration which could be regarded as adversary, and not merely formal. It is not contemplated by the law that a judge shall, of his mere volition, thus divest himself of power and duty. The want of judicial delicacy or propriety does not render the grant void, and involve in grievous loss all who may have relied on its validity. The question has been decided by two deliberate adjudications of this Court.—Hine v. Hussy, 45 Ala. 496; Hays v. Collier, 47 Ala. 726. If we had doubts, even grave, of the correctness of these decisions, we could not be justified in departing from them. No legal question can more nearly touch the rights and interests of every class of the community than the validity of a grant of administration. It would reduce the community to the most painful insecurity if there was oscillation of judicial decision in reference to it. We must abide by the former decisions, declaring the relationship or interest of a probate judge does not render void a grant of administration. The judgment of the Court of Probate is affirmed.