13 Ala. 529 | Ala. | 1848
By the act of 1826, (Dig. 196, § 20,) it is provided, that “ the dead victuals, and liquors which, at the
The object of the legislature, in the enactment of the above statutes, doubtless was, to provide the family of the deceased with the present means of subsistence, and comfort, by allowing them to retain, free from account on the part of the executor, or administrator, such articles as were indispensable for their maintenance and convenience. The executor being, by the express terms of the statute, prohibited from selling, as well as relieved from accounting for such property; and the statute conferring no authority upon the orphans’ court to order a sale in any event, it follows as a necessary consequence, that the proceedings in the orphans’ court were coram non judice, and void, and that the executor derived no power over the property, by virtue of the order requiring him to sell it.
The powers of the orphans’ court over the estates of deceased persons, are limited. It can only act in cases where' legislative grant confers jurisdiction. Leavens v. Butler and wife, 8 Porter, 381. The decrees of that court, beyond the warrant conferred by statute, are nugatory, and a fortiori is. the decree void, when it commands the executor to perform what the statute expressly prohibits him from doing. But it is insisted, as the widow instituted the proceedings, she should not complain, that the court entertained jurisdiction. Were this position correct, it would not sustain the decree. The petition was, to restrain the executor from doing what the court in effect orders him to do. -But it is held by this court in the case of Wyatt, et al. v. Judge, et al. 7 Porter’s
It is further contended, by the counsel for defendant, that the family, and not the widow, is entitled to the property sued for. It is true, should the children, after the death of the father, leave the family, the statute provides they shall have a right to carry with them an equal share of the property reserved by the act of 1826, but this provision does not extend to the property exempted from sale by the act of 1827. The widow, upon the death of her husband, becomes the head, and representative of the family. Heirs of Capal v. McMillan, adm’r, 8 Por. Rep. 197. And consequently entitled to sue for property, which she has in possession, and is allowed to retain for the use of the family. Nor is this capacity to sue taken away by the removal of the children. We should do manifest violence to the intention of the legislature to hold, that the removal of the children should entitle the executor to seize and sell from the widow, such articles as the law esteems indispensable to her subsistence and comfort. Our conclusion is, that the executor should be considered as having acted without authority, and that the plaintiff, upon the facts stated in the bill of exceptions, is entitled to recover the value of her share in the dead victuals, &c., secured by the act of 1826, and the entire value of the other property, not included in the above recited act. The judgment of the circuit court is therefore reversed, and the cause remanded, that the court below may proceed to try the same according to the conclusions above ascertained.
