62 Ala. 261 | Ala. | 1878
It is contended by the appellants, that the order of the court of probate appointing Cannon as sheriff, administrator of the estate of M.ayfield, is void, because the record of the appointment does not disclose that there was no general administrator of the county, and no other fit person who would administer. The statute on which the argument is founded, is in these words: “In case there is no general administrator, and no other fit person will administer, the court may commit administration to the sheriff or coroner of the county.” — Code of 1876, §2363. The constitution of force when the administration in question was granted, conferred on the court of probate original, general and unlimited jurisdiction of the grant of letters tes
It is next contended, the bond on which the action is founded is void, because it was taken by the probate judge of his own volition, in the absence of any statute expressly authorizing it, in a penalty greater than that which the court of county commissioners prescribed, and when the principal was acting as sheriff, under a valid statutory bond, sufficient in penalty to cover the default he has committed. The statute of force when the bond was executed, conferred on the judge of probate the authority to fix the penalty of the original official bond of the sheriff, not limiting the power in any respect, except that the penalty should not be less than five thousand dollars. — R. C. § 814. The grant of administration to Gannon, attached to his office of sheriff, and his official oath and bond, were a security for his faithful administration. — R. C. § 2010. The power to prescribe the penalty of the general official bond of the sheriff may be exhausted, when the bond is taken and approved, and there may not be in the probate judge any power subsequently to alter it.— Harris v. Bradford, 4 Ala. 214. And it is true there was no statute expressly conferring on the judge of probate, or the court of probate, authority to require of a sheriff an additional bond on the grant of an administration to him. Tet, if a faithful administration is to be secured, and the interests of creditors and next of kin are to be protected, there will often be a necessity for the exercise of such a power. The assets of a particular estate may, and often in fact, largely
When an additional bond is required from and executed by a sheriff, any person aggrieved by his subsequent default is entitled to sue on either the original or additional bond-Code of 1876, § 190.
There is no error in the rulings of the circuit oourt, and its judgment is affirmed.