Eslava v. Elliott

5 Ala. 264 | Ala. | 1843

ORMOND, J.

The issue presented to the jury upon the informal plea in this case is, whether the defendant was administra-trix at the time the writ was sued out.

The plaintiff to maintain the issue on his part, offered a transcript of the record of the Orphans’ court of Mobile county, showing a grant of administration on-the estate of John Elliott, depeased, made to the defendant previous to the commencement of this suit. The letters of administration which the court grants, are merely the evidence of the authority conferred on the administrator by the grant of administration, there is therefore no necessity, in a suit against the administrator, to prove that they have issued, but it will be sufficient to prove the grant of administration. [Elden, adm’r, v. Kendall, 8 East, 187, and Hosey, adm’r, v. Brasher, 8 Porter, 559.]

The statute on this subject, [Aik. Dig. 177,] makes the execution of the administrator’s official bond, and his oath a prerequisite to the grant of administration; he cannot, therefore, in a suit against him be heard to say that these conditions, on which alone the grant can lawfully be made, have not been performed. By the grant of administration, he acquires the control over the personal property of the deceased, and it would be of most pernicious tendency if he could be allowed to dispute the validity of the act by which he obtains his title.

Tine evidence offered by the defendant was, that the official bond was not executed until after the time, when by the record of the county court, it appears the grant was made, and not until after this suit was commenced^ and that letters testamentary had not then issued. This testimony, for the reason already stated, was improperly admitted, as its tendency was to prove the non existence of those acts, at the time of the grant, without which no grant of administration could lawfully be made, and by necessary consequence, to contradict the record.

It appears that when the grant of administration was made, the time when it was granted, was not inserted in the record of the grant in the county court. This omission has been rectified by a judgment of that court entered nunc pro tunc. Assuming, as we must do, in this case, that this judgment was regular, it is of the same validity as if the date had been inserted when the grant was made. The evidence, therefore, which the court permitted to go to the jury of the date and entry preceding, and of that following the entry of the grant to the defendant, was wholly inadmissible, as its direct tendency was to contradict the record. The inference intended to be drawn, and which doubtless was drawn by the jury, was that the date assigned to the grant by the judgment nunc pro tunc, was wrong, from its position on the records of the county court in reference to other entries on the same page. This was directly calling in question the truth of the record, and therefore inadmissible.

If the administratrix in this case had declined acting on the grant made to her, and had never exercised any control over, or meddled with the estate of the deceased, the question would be entirely different from that now presented. For the error of the court as shown in this opinion, tire judgment must be reversed, and the cause remanded.