73 Ala. 140 | Ala. | 1882
— The letters of administration granted by the Probate Court of Morgan county to Bean and Garner, in November, 1863, were valid, although made during the late war. This was settled in Nelson v. Boynton, 54 Ala. 368, which has not since been departed from. — Kellam v. Allen, 69 Ala. 442.
So long, therefore, as these appointees continued to hold, and no vacancy was created in the administration by their resignation, removal, or death, no subsequent grant could be
In the absence of evidence, however, to the contrary, such a vacancy may be presumed, on eollateral attack, from the mere fact of the court’s having granted the administration de bonis non. The second grant can be held invalid only where there is such evidence, affirmatively showing that no such vacancy existed.— Gray's Adm'r v. Cruise, supra; Hatchett v. Billingslea, 65 Ala. 16.
The general rule is, that “where the probate court exercises the power to appoint an administrator of an estate, it is to be presumed that it previously ascertained the existence of the jurisdictional fact, without which the power could not be legally exercised; and its validity is not permitted to be collaterally assailed, or questioned otherwise than in _ a direct proceeding” (Burke v. Mutch, 66 Ala. 568, 570); "or, as otherwise declared, “facts, which must have been ascertained by the court to exist, and upon the existence of which the regularity of its action depends, will be conclusively presumed to have been ascertained, unless the record affirmatively discloses the contrary.” — Burnett v. Nesmith, 62 Ala. 261; Freeman’s Jud. Sales,-§ 4, p. 21, note 25. One of the established exceptions to this rule is, where there is no vacancy in an administration, evidence is admissible, even in a collateral proceeding, to show the fact, and in such event the second grant is. absolutely' void. — Matthews v. Douthitt, 27 Ala. 273; Gray v. Cruise, 36 Ala. 559, supra; Coltart v. Allen, 40 Ala. 155; Nelson v. Boynton, 54 Ala. 368. So a grant of letters of administration on the estate of a living man, who was supposed to be dead, has been held to be a nullity. — Duncan v. Stewart, 25 Ala. 408.
The evidence here negatives the existence of any vacancy in the administration which would authorize the grant of an administration de bonis non. The incompetency of the probate judge authorized the register in chancery to act in his stead as if he were probate judge, so far &s concerned the particular duty for the performance of which the judge was incompetent. Code, 1876, § 2648. The acts of the register, however, would become records and proceedings of the probate court. He must discharge these duties in the probate court, without the removal of the original papers or records of such court, and is pro hoc vice the acting probate judge. — Bean, Adm'r, v. Chapman et al., 62 Ala. 58.
The record contains -what purports to be the entire proceed
The judgment of the circuit court is, in our opinion, free from error and must be affirmed.
