Werborn v. Pinney

STONE, J. — In July, 1881, George F. "Werborn, as executor, came to a final settlement of the estate of Adolph Solomon, deceased, in the Probate Court of Mobile. On that final settlement, a money decree for some two hundred and three dollars was rendered against him, in favor of Mrs. Pinney, the surviving widow of the said Adolph Solomon. Mrs. Pinney appealed from said decree to this court, and the decree of the Probate Court was in all things affirmed. — Pinney v. Werborn, 72 Ala. 58. An execution was thereupon issued from the Probate Court of Mobile, to enforce the collection of said money deci’ee, so affirmed in this court. Werborn then moved the Probate Court to quash said execution, on the alleged ground that it “ was issued in excess of the powers of this [Probate] court, and in exercise of powers over a subject-matter not confided to this [Probate] court by the laws of Ala [593] bama.” The Probate Court overruled the motion to quash, and Werborn appealed to this court from that ruling. The attempt was made in the Probate Court to show, by proof aliuncle, that that court was without jurisdiction to render the decree, for the enforceinent of which the execution had been sued out. It was not disputed that the execution pursued the decree, and it was not contended the decree had been obtained by fraud. The precise shape the contention took was, that, under the provisions of Mr. Solomon’s will, limitations were imposed and trusts created, which ousted the jurisdiction of the Probate Court; and the court being without jurisdiction, the decree was void; and this was attempted to be shown by the introduction of the will, and other evidence dehors the record. All this came too late. It was an attempt, on supersedeas, to go behind the judgment, and to re-try questions which should have been brought up on the trial. On supersedeas of an execution, which follows a judgment regular on its face, the relief, to be available, must rest on facts occurring subsequent to the decree; or, if it relate to antecedent facts, must show fraud in the decree, or a want of jurisdiction in the court, apparent on the record.— Gravett v. Malone, 54 Ala. 19; Mervine v. Parker, 18 Ala. 241; Matthews v. Robinson, 20 Ala. 130; Marshall v. Candler, 21 Ala. 490. The Probate Court is expressly and generally clothed with power and authority over the final settlements of executors and administrators; and the cases in which they have not such jurisdiction are exceptional, growing out of special trusts or equities shown, for which their powers are not plastic enough. These, when shown, deprive the court of jurisdiction. But they must be shown before final decree; and, to open the question for inquiry afterwards, the record must affirmatively show the existence of such exceptional facts. If parties proceed to-final settlement and decree in disregard of them, and the court enters an ordinary decree — such as is common in final settlements — we are bound to presume, in favor of regularity, that no valid objection to the jurisdiction existed. And this presumption would be strengthened, if it were possible to make it stronger, by the fact that such decree was procured to be affirmed in a revising court, without objection on the score of jurisdiction. It is objected further, that the probate decree was improperly rendered in favor of Mrs. Pinney, a married woman, instead of her husband and trustee for hei'use. "We need not consider whether there is any thing in this objection. This, too, comes too late. If well taken-, it is only matter of irregularity, which could be considered on error. Possibly, when the question-is raised collaterally, as here, it would be our duty to [594] presume shé had been made a free-dealer, to sustain the decree of the primary court. But, this alleged error was not' even raised in the court below, as a ground for quashing the execution. We can only review the questions there raised and passed on, unless the proceedings were void on their face. The judgment of the Probate Court is affirmed.