Bibb & Falkner v. Avery, 45 Ala. 691

Bibb & Falkner v. Avery

45 Ala. 691 | Ala. | 1871

Lead Opinion

PECK, C. J.

The error assigned raises the question as to the legal effect of the probate of the will, and the grant of letters testamentary by the probate court of Chambers county, during the existence of the government established under the late rebellion.

In the case of Martin v. Hewitt, at the June term, 1870, we held, that the judgments rendered by the courts of the late rebel government in this State, created no liens on the property of defendants that, in the absence of legislation, would be recognized and enforced by the courts of the present government; that such judgments could stand upon no higher grounds than foreign judgments, and constituted mere causes of action, and could only be enforced by the law of comity, and in actions brought for that purpose.

In the case of Chisholm v. Coleman, 43 Ala. 204, it is decided, that the government in this State, under the rebellion, was not a part or member of the United States, or the government thereof; that it was a rebel government, and nothing more. It was, therefore, in its nature and character, more nearly assimilated to a foreiga government than to anything else to which we can compare it. It did not recognize the constitution and laws of the United States, or in any manner yield to them any obedience. It claimed to be altogether independent of that government; the judges of its courts derived their authority, and received their commissions, from an alien hostile power, waging open and flagrant war upon, and denying all allegiance to, the government of the United States. For these reasons it is, that the judgments and judicial acts of its courts can stand upon no higher grounds than the judgments and judicial acts of foreign courts.

It is true, there seems to be an apparent incongruity in this view of the case, arising from the fact that the rebel State government had the same name, and was in possession of the same geographical territory, as the legitimate government of the State of Alabama before and since the rebellion, and the people were the same people; but this apparent incongruity disappears when we look to princi*694pies, and not to names. For we know that the rebel State of Alabama, not rightfully, but in fact, was in all its essentials, its sovereignty, dominion and government, as utterly foreign to the United States as the government of Canada or of Santo Domingo ; consequently, the judgments of its courts and judicial acts can be treated as having no greater legal effect than the judgments and judicial acts of a recognized foreign government. They certainly were not the judgments and judicial acts of the courts of one of the United States.

Treating the probate of the will of the testator and the letters testamentary issued by the probate court of Chambars county under the rebellion, as the judicial acts of a foreign court, we find no difficulty in holding that the plaintiffs, in their character of executors, can not maintain the present action. The admitted doctrine, both in England and this country, is that a foreign executor or administrator cannot maintain an action in the courts in either country, in virtue of his foreign letters testamentary or of administration. New letters must be taken out, and new security given, according to the rules of law prescribed in the country or jurisdiction where the suit is brought.

The right to take out such new letters is admitted as a matter of course, unless some special reasons intervene to the contrary. — Story’s Conf. Laws, § 512, and authorities there cited; 2 Kent Com. 3d ed., note b 422.

Usually, such new letters are held to be ancillary merely, but under the peculiar circumstances attending such cases as the present, they should be regarded as original. If the plaintiffs refuse or fail to take out new letters, then administration with the will annexed may be granted to some third person. Such an administration should be considered in the nature of an administration de bonis non.

So far as the plaintiffs have acted in good faith in their administration, and in conformity to the will, they should be protected. The probate of the will is not void, but should stand on the same footing as a foreign probate. The plaintiffs, under their letters testamentary, and by virtue of the will, were authorized to take possession of the personal property of their testator, and to collect the *695debts of the estate, where voluntarily paid, or even by suit, if no objections were made. They might also pay the just debts of the testator, and the legacies, if any, bequeathed by the will. Whether, if administration be granted to another, the probate court can compel the plaintiffs to settle their administration, we do not decide; but if it can not, treating them as trustees, a court of chancery undoubtedly can.

Note by the Beporter. — At a subsequent day of the term, the appellant applied for a rehearing, the argument in support of which did not come into the Eeporter’s hands. It was responded to as follows :

The judgment of the court below is affirmed, at appellant’s costs.

Dissenting Opinion

SAFFOLD, J.,

dissenting, for the reasons given in his dissenting opinion in Noble Bros. v. Cullom, 44 Ala.

PECK, C. J.

-The opinion in this case was written after the maturest consideration, and the petition for rehearing has been carefully examined. I am still ,of the opinion that the decision is right; it must, therefore, stand as the judgment of the court. Further, we do not feel at liberty, nor do we think it wise, to undertake to indicate what ought to be the practice under this decision, beyond what is said in the opinion itself.

The rehearing is denied.