36 Ala. 559 | Ala. | 1860
The plaintiff sued as administrator de bonis'non of John Gray; and the general, charge of the court, that if the jury believed the evidence, the plaintiff was not entitled to recover, is sought to be sustained upon the ground, that the order of the probate court, by which he was appointed such administrator, was null and void.
The jurisdiction of the prohate court, in the matter of the grant of letters testamentary, and of administration, is original, general, and unlimited. It is, to that extent,
But this court has, more than once, recognized the principle, that such an order is not conclusive evidence of the jurisdiction of the court in.the particular case; and that if, in point of fact, there was no vacancy in the administration when the order was made, the appointment will be held void, even in a collateral proceeding. — Mathews v. Douthitt, 27 Ala. 273; Rambo v. Wyatt, 32 Ala. 363; also, Lessee of Griffith v. Wright, 18 Geo. 173; Miller v. Jones, 26 Ala. 259.
In the present case,'it is insisted, that the presumption of jurisdiction, which would arise from the isolated order for the appointment of the plaintiff as administrator de bonis non, is overturned by other parts of the record from the probate court, which, it is alleged, show that there was no vacancy in the administration when the plaintiff was appointed. The point made in support of this proposition is, that it appears from this record that Mrs. Gray had been duly appointed administrator of her deceased husband, and that it is, not shown that her administration had ever terminated.
As superior courts act by right, and not by wrong, their acts and judgments are conclusive in themselves, unless plainly beyond the jurisdiction of the tribunals whence they emanate; or, as it is,elsewhere expressed, “nothing shall be intended to be out of the jurisdiction of a superior court, but that which specially appears'to be so.” In regard to such courts, every presumption is.made, in favor not only of their proceedings, but of their jurisdiction. Grignon v. Astor, 2 How. (U. S.) 341; Morgan v. Burnett, 18 Ohio, 535 ; Adams v. Jeffries, 12 Ohio, 253, 271; Wright v. Watson, 11 Humph. 529, 531; Wells v. Mason, 4 Scammon, 84, 88; Cox v. Thomas, 9 Gratt. 323; Morrow v. Weed, 4 Iowa, 77; Kelsey v. Wiley, 10 Geo. 371, 382; Woods v. Crawford, 18 Geo. 526; Shumway v. Stillman,
The probate judges, as is well known, are not always selected for their legal learning; and the records of these courts are often made up without the aid of counsel, and in haste. The rule, that liberal intendments will be indulged in support of the proceedings of courts oí general jurisdiction, is, therefore, applicable with peculiar force to probate courts, so far as they are courts of general jurisdiction. — See Miller v. Jones, 26 Ala. 259; Wyatt v. Rambo, 29 Ala. 527—8; Lyon v. Odom, 31 Ala. 238, 240.
Giving to the record from the probate court of Shelby county the benefit of a liberal application of the maxim, omnia presumuniur rite esse acta, we do not think that the appointment of the plaintiff as administrator de bonis non is shown so clearly to have been beyond the jurisdiction of the court, as that it may be pronounced void in a collateral proceeding. It appears from the record, that Mrs. Gray was duly appointed administratrix of her deceased husband, on 15th December, 1845. The parol evidence
It is true, the record does 'not state, in so many words, that Mrs. Gray resigned her administration upon the estate of John Gray; ñor that her resignation was in writing, as required by law. But the entry does show that she resigned something, and there is no evidence that she field any other office which she could resign to the probate court, except that of administratrix of her deceased husband. As soon as this resignation (whatever it may have been) ivas received by the court, an order was made, and recorded in the same entry, for the appointment of John Gray; a proceeding which was altogether nugatory, if she had not resigned her administration. Moreover, Mrs. Gray is never, after this, spoken of, or' referred to in the record, as administratrix of her deceased husband; but in all the orders and decrees made in relation to the estate, after this date, the court proceeds as if her administration had terminated. No violence is done to the language of the order, by construing it to refer to a written resignation; and, with the view of upholding the validity of the subsequent proceedings, it is our duty to place that construction upon it. Considering'this order, in connec tion with the order for the appointment of Brewer as administrator, which forms part of the same entry, and with the other parts of the record, the most that can bo said is, that it is doubtful whether or not the administratrix had in fact resigned. This, as we have seen, falls short of the showing necessary to be made, before the appointment of the administrator dc bonis non can be treated as void, in a collateral proceeding. The question would be a very
The counsel on both sides concede, that Brewer never was legally appointed administrator. The order made was, that he be appointed administrator, “on his executing and filing in this office his bond, to approval, in the sum of $2000.” The fact that Brewer was subsequently recognized by the court as administrator might, possibly, in the absence of opposing evidence, justify the presumption that he had complied with the order, and given the required bond. But the transcript from .the-probate court was a complete transcript of the records and “of the files” touching the administration of Cray’s estate; and the bond required of Brewer is not to be found in it. There is, therefore, affirmative evidence that no such,bond was in fact executed by him; and, in order to sustain the validity of the subsequent grant of administration de bonis non to the plaintiff, when collaterally assailed, this appointment of Brewer, under a conditional order which was never complied with, will be disregarded. — See Hoskins v. Miller, 2 Dev. 362.
Judgment reversed, and cause remanded.