Johnson v. Kyser

TYSON, J. This was an action of ejectment brought by the plaintiff,- as executrix- of William J. Kyser, deceased, to recover possession of a certain tract of land described in the complaint. It appears from the recital in the letters testamentary panted to the plaintiff as executrix of the last will add testament of William J. Kyser, by the probate court of Conecuh county, introduced in evidence, that her testator’s will had been duly probated in Santa Rosa county, Florida, and that she had complied with the requirements of the law and [313] was authorized to take upon herself the execution of said will. The objections interposed by the defendants to-the introduction in evidence of the letters testamentary were, that the recitals in them show that William J. Kyser, the testator, ivas a citizen of the state of Florida when he died, and that the executrix therein named is a citizen of said state; and that no sufficient proof has been made of the antecedent proceedings necessary to authorize the issuance of such letters by the probate-court of Conecuh county. These objections are made the basis of an argument here that a foreign executrix has no authority to recover and receive assets located in this state. And furthermore that lands, not devised, descend to the heir who alone is entitled to the possession. That an executor, without the existence of necessity, such as the payment of debts of the testator and for the purpose of sale for division, cannot intercept or divest the possession of the heir. The logical deduction to be drawn from this argument is, that the plaintiff has no right -as executrix to maintain this suit. This question can be raised only by a plea of ne unquex executrix. Berlin v. Sheffield Coal, Iron & Steel Co., 124 Ala. 322; Hatchett v. Berney, 65 Ala. 39; Cloud v. Golightly, 5 Ala. 653. Since the record contains no such plea, presumably none such was interposed in the court below, and the defendants must be held to have waived it. But aside from this, the letters are -conclusive evidence of the authority of "the plaintiff to receive and recover all assets belonging to her testator, situated in this state, until they are revoked. — Code, § 77, and authorities cited under it. The proposition asserted against the right of this executrix to -intercept or divest the possession of the ■heir does not arise in this case. There is no pretense-that these defendants derived any right, title or interest in the lands sought to be recovered from the heir or devisee of the plaintiff’s testator. As against them, in the absence of any evidence supporting a right, title or interest derived by them from the devisee, the plaintiff would be entitled to the possession of the lands, unless-they have shown a superior title by conveyance or adverse possession for ten years. [314] The cases of Lee v. Downey, 68 Ala. 98, and Stovall v. Clay, 108 Ala. 105, relied upon by appellants’ counsel have no application to this case. They involve the right of an administrator to divest the heir or his assigns of the possession of the lands where no necessity existed for such divestiture for the purpose of administration. The deeds of Gross and Darnell to Hawthorn and of Darnell and wife to Hawthorn were properly admitted in evidence. The objection made to their introduction proceeds upon the ground that they were not executed by one Allen, whom the patents -shaw had an undivided half interest in eighty acres of the lands sued for. This is wholly untenable for the obvious reason that the deeds conveyed the undivided half interest of Gross and Darnell, Allen’s co-tenants, which interest the plaintiff’s testator acquired from Hawthorn. If the objection was sound, no plaintiff in an action of ejectment who has an interest in lands, less than the entire estate, could maintain the action because of his inability to make proof of his title. The plaintiff having offered evidence tending to show actual posession by her testator during his life’ and at the time of his death, of the lands sued for, and this possession, and the posession claimed by the defendants and their ancestors being in dispute, it was a matter for the determination of the jury. There are other assignments of error based upon objections to evidence and charges refused to the defendant, but they are not insisted upon in argument. The failure to do so is a waiver of them, and we must decline to consider them. The judgment of the circuit court is affirmed.