Hicky v. Stallworth

SIMPSON, J. This was an action of ejectment by appellee against appellant, and the question is raised in the outset, by appellant, that the appointment of appellee’s predecessor and himself, as administrator de bonis non of the estate of Thomas Gretopull, was void, and [538] that consequently said plaintiff (appellee) could not maintain this action. It appears, from the testimony set out in the bill of exceptions, that said decedent died in 1872, and in May, 1873, his widow, Eliza Gretopull, was appointed administratrix of his estate. She married one Hickey, and, in December, 1875, they filed a petition, accompanied by an account for final settlement, stating that all of the debts of the estate had been paid and praying “That there may be a final settlement, of said estate; that the accounts of said administration be audited and allowed, and that they may be relieved and discharged there-, from.” The matter proceeded regularly, and on the 2nd Monday in December, 1875, a decree was rendered in “The matter of the final settlement of said estate,” reciting the notices, etc., ascertaining the amounts of receipts and disbursements, and winding up, “It is further ordered that said Eliza and Thomas J. Hickey, be and they are hereby discharged from further accounting in this court in the matters of said administration.” The point is made that section 111, of the Code of Alabama, authorizes the appointment of an administrator de bonis non only where the preceding administrator has died, resigned, or been removed, and that, while Eliza Hickey is now dead, yet she had previously made full settlement of the estate and been discharged. This point does not seem to have been before this Court when this case was under consideration before, nor do all of the proceedings in the probate court seem to have been before it, and the Court, while stating that it is necessary that a vacancy should exist before an administrator de bonis non could be appointed, states that “The second grant can be held invalid only when there is such evidence affirmatively showing that no such vacancy existed,” and goes on to state that “If she (Eliza Gretopull) continued to be administratrix, after her final settlement in 1875, and up to the time of her death * * * * her administration terminated at her death.” —Sands, Admr. v. Hickey et al., 135 Ala. 322. The entire proceedings in the probate court, which appear in the record as it is now before the Court, show [539] that said administratrix did not resign, nor die (while she was: administratrix), nor was she removed, but she made application distinctly to wind up the estate, on the ground that it had been fully administered, and prayed to be discharged, and the court passes the account as a final settlement and decrees the discharge of the administratrix. The certificate of the probate judge shows that the exhibit contains all the proceedings in relation to said estate, and she does not appear in it again, and, in fact, after being discharged she could not act any more. So that the question is clearly presented whether or not, after an estate has been finally wound up and the administrator discharged, the probate court can open the estate again by appointing an administrator de bonis non? The State of Indiana, has a statute substantially like ours, (the words in it being “Die, resign or remove from the state,”) and the Supreme Court of that state has decided that “After an estate has been adjudged finally settled, and the administrator thereof discharged, letters of administration de bonis non cannot issue upon the same estate, while such final settlement remains unrevoked and in force, the matter being res adjudicata— Pate v. Moore, 79 Inch 20; Vestal v. Allen, 94 Inch 268; Crexton v. Reuner, 103 Inch 223. In our own State this particular point has never been decided. The probate court is a court of general jurisdiction in the matters: committed to it, and in the absence of proof it will be presumed that the jurisdictional facts existed,- yet its jurisdiction is confined to the matters committed to it by statutes, and, if it affirmatively appear that the jurisdictional facts did not exist, its decrees will be declared void, even collaterally. It has been decided by this Court 'that the fact that there is a vacancy is a, jurisdictional fact, and that the appointment of an administrator de bonis non, when there is no vacancy, is absolutely void, and will be so declared even in a collateral proceeding. — Allen v. Kellum, 69 Ala. 442; Mathews v. Douthit, 27 Ala. 273; Gray v. Cruise, 36 Ala. 559; Morgan v. Casey, 73 Ala. 222. In the later case of Henley v. Johnson, 134 Ala. 646, [540] the appointment of the administrator de bonis non is sustained because “It is not shown by the averments of this petition or otherwise whether the petitioner as former administrator had been discharged by an order from his office as administrator,” and if .he had it might be presumed that he had resigned and then made the settlement: — p. 650. In the case now before the Court, no such presumption can be indulged, because the entire record from the probate court is in evidence duly certified, and shows clearly that it was simply a final winding up of the estate and a discharge of the administratrix. We follow the Indiana cases because they seem to be based on sound reasoning, and also consonant with the policy of our laws. It is the evident purpose of our. statutes that there shall be a time beyond which the affairs of an estate must be considered settled, and the property rights of those in interest shall be at rest. Claims are to be presented within a certain time, or forever barred; parties are allowed a certain time within which to correct any errors in settlements in the probate court, after which they cannot be disturbed. While the estate is in process of administration, the heirs hold the lands of the estate subject to the right of the administrator to subject them to the payment of debts; when the estate is finally settled and the administrator discharged, the title is vested absolutely in the heir, and it is not to be presumed that it is the intention of the. law (especially Avhen not within its letter), that these titles are to be disturbed and the propeiiy made liable’for costs by successive administrations, when the debts are all paid and there is no reason why it is necessary to administer. If any peculiar case does occur, not provided for by statute, resort should be had to another tribunal, where the equities of all the parties can be preserved. It follows that the plaintiff was not entitled to recover in this case. The judgment of the court is reversed, and a judgment will be here rendered in favor of the appellant. Reversed and rendered. McClellan, C. J., Tyson and Anderson, J.J., concurring.