41 Ala. 604 | Ala. | 1868
Lead Opinion
The court below overruled the motion to charge the appellee with the value of certain cotton belonging to his intestate, which he had sold. Several reasons are urged against the correctness of this ruling, which must be examined seriatim.
The doctrine was established in this State in 1838, and has been since sustained, that the' jurisdiction of the probate court to make orders of sale, such as those mentioned in that section, is maintained, when an application is made conformably to the statute; and it is now held, that no subsequent irregularities vitiate-the sale, and that, in determining the question of jurisdiction, when a collateral assault is made upon the order, the language must be construed favorably to the maintenance of the jurisdiction.—Wyman v. Campbell, 6 Porter, 220; Satcher v. Satcher, at the last term; King v. Kent, 29 Ala. 542 ; Hatcher v. Clifton, 33 Ala.
The ascertainment of the true meaning of this statute is facilitated by a slight transposition of words. Its obvious intent is to give to the probate court power to order, on the application of the representative, the sale of the specified character of personal property, whenever it shall appear by proof that such sale would be beneficial. The question here is not, whether the petition for the sale would have been good on demurrer. Probably it would not, on the principle that a pleading should aver all that the party is required to prove. The question is, whether the application, which in this case is in writing, made the representation requisite to authorize the court to hear and decide the case. The statute does not require the applicant to represent that the sale would be beneficial to the interests of the estate, but that such fact should appear by proof. The manner in which the fact should appear to the court, is carefully prescribed; and it is not for us to superadd the requisition, that it should appear in another manner. “ Indusio unius est ex~ dusio alterius.” There is power to order, on the application of the representative, the sale of certain classes of property ; but, after the jurisdiction attaches, in consequence of the application, proof of a particular fact is required. The administrator is not required to represent that the sale would be beneficial, and his failure to do so can not make it void. The authorities above cited clearly show, that the failure to represent such fact, admitting that there was such failure, does not sustain a collateral impeachment of the order. In several of them, there was a clear omission of the court to do things prescribed as preliminary to the order, and an omission to aver them in the initiatory petition; and some of them are made in reference to a law which not only requires proof, but prescribes the mode in which it is to be made. All that is necessary to the validity of the order is, that the application should show the jurisdictional fact. That fact, in this case, is, that the property was liable to waste, or of a perishable nature. Is that shown in the application ?
There is no word in the English language more difficult to define, or “of more equivocal import, than the” monosyllable or. — Burrell’s Law Dictionary, “Or.” Jarman, in his work on Wills, in reference to the meaning of this word, says : “ But by far the most numerous class of cases, exhibiting the change of a testator’s words, are those in which the disjunctive or has been changed into the copulative and, and vice versa. It is obvious that these words are often used, orally; without a due regard to their respective import; and it would not be difficult to adduce instances
The allegation of the petition, that the cotton was “ of a character liable to waste, or be consumed by fire,” is nonsense, if it be understood to assert the alternative proposition of liability to the one or the other, but not to both. There is nothing in the liability to waste, which opposes a liability to be consumed by fire, and nothing in a liability to be consumed by hire which opposes a liability to toaste. Cotton certainly may be liable to waste, and is liable to consumption by fire, and a- liability to both may exist at the same time. In common conversation, in a will, and in a deed, the language would be understood to assert a liability both to waste and to fire. Why should itjj be understood differently in this petition ? We could only place a different construction by disregarding our own decisions that such
Another position has occurred to us, as an answer to the argument that the order of sale is void for want of jurisdiction. It is this, that the assertion of the liability of the cotton is a statement that it is perishable, with a specification of the mode of its perishableness; and that therefore, even if the statement of the petition be alternative, in either alternative the court had jurisdiction. We mention the proposition, and cite authorities bearing upon it, but we pass it by as a point which it is unnecessary to decide.—Steele v. Wyatt, 23 Ala. 764; S. C., 26 Ala. 639; Millard v. Hall, 24 Ala. 209; Satcher v. Satcher, at the last term; King v. Kent, supra; Hamlet v. Johnson, 26 Ala. 557; Ozley v. Ikelheimer, 26 Ala. 332.
It is also objected to the validity of the order of sale that the petition does not represent the cotton to be “liable to waste,” in the language of the statute, but “of a character liable to waste.” To sustain this position, would require a niceness of verbal criticism, which would scarcely be permissible in the decision of a demurrer to a common-law pleading. The validity of these orders of sale does not depend upon the employment of the statutory language. They will be sustained, if the expressions can, by aid of a favorable construction, be held equivalent.—Satcher v. Satcher, supra; King v. Kent, supra; Hamlet v. Johnson, 26 Ala. 557.
Under the law as it existed before the adoption of the Code of 1852, private sales of the property, real and personal, of decedents, were held to be void. But in none of the cases was there an order of court, in a case of which it had jurisdiction, directing a private sale.—Ventress v. Smith, 10 Peters, 161; Wier v. Davis, 4 Ala. 442; Dearman v. Dearman, ib. 521; Fambro v. Gantt, 12 Ala. 298; Hopper v. Steele, 18 Ala. 828; Lay v. Lawson, 23 Ala. 377 ; McArthur v. Carrie, 32 Ala. 75, which is in reference to a statute of Mississippi, identical with the former law pf Alabama—Hutchison’s Mississippi Code, pp. 669, 670, § § 109, 117 ; Bragg v. Massie, 38 Ala. 89. Therefore, the question whether a private sale is void, when made under the authority of a court having jurisdiction of the case, is not res adjudicata- in this State. Now, it is a principle thoroughly imbedded in the jurisprudence of Alabama, that in these proceedings before the probate court, its erroneous action upon any point arising after jurisdiction has attached, does not render its order or decree for a sale of personalty void. The question whether the sale should be private or public, arose after the jurisdiction attached, and upon the hearing of the cause. As to the power to order a private sale since the adoption of the Code of 1852, no decision has been made by this court. All the decisions are above collected, and refer to sales in this State made before the adoption of the Code; and their validity was, therefore, triable by the previous law. The law of Mississippi, in reference to which one of the decisions was made, was the same with our own law. The statutes before the Code of 1852 expressly declared, that it should be “ unlawful” to sell privately, and that the sale should be “ at public sale, to the highest bidder.” The Code omits thus emphatic and direct prohibition and direction ; and the negation of the power to sell privately can only be made out (if at all) by argument, which may, and
We introduce this contrast of the manner in which the negation of the power of private sale was derived under the old law, and the manner in which it is supposed to be derived under the present law, because, under the latter state of the law, the argument is at least more striking; and for the additional reason, that the decision in Lay v. Lawson (p.390) expressly bases the decisions,holding private sales void, on the positive assertion that it is unlawful to make them; and the argument proceeds upon the concession of the propriety of a different ruling, in the absence of that assertion. The case we have before us is this. An administrator in his petition prays an order for a private sale, thus imposing upon the court the inevitable duty of deciding the question of private or public sale; the petition was received ; the court thus acquired jurisdiction to decide the question ; the question is one about which lawyers and judges may differ; he decides the question, as we must infer, according to the dictates of his judgment, enlightened by all attainable information. It would be truly a destructive doctrine, that his decision upon a question of such a character, falling within the scope of his authority to adjudicate, was absolutely void. It is admitted, that, if the jurisdiction of the case depended upon the publicity of the sale ordered, the law would be different; for an erroneous decision that a fact gives jurisdiction is not enough. But here the jurisdiction had already resulted from the reception of the petition, containing the requisite allegations. From the conclusion that the order directing a private sale was not void, it is a corollary, that the sale made in obedience to it was likewise not void.
The ascertainment of the policy of the petition for the sale of the cotton, and the making of it, constitute a step in the line of the administrator’s duty. It was not a departure from the law-appointed line of duty. An administrator may act within the line of his duty, and yet, by bad faith, or the want of care and diligence, render himself liable.—Clough v. Bond, 3 M. & C. 491. But, for reasons which we have already given, we can not conclude that the administrator, in petitioning for the sale, has, in reference to the policy (supposed to be now demonstrated) of retaining the cotton, acted in bad faith, or without reasonable care and diligence. The onus of proving these imputations of bad fath or a want of care and diligence, when the administrator has acted within the line of his duty, is upon the adverse party.—Pearson v. Darrington, 32 Ala. 227, 247, § 9 ; Clough v. Bond, supra ; Gerald v. Bunkley, 17 Ala. 170.
The bad faith of the administrator, in seeking the authority to sell, is argued from the contrariety of policy adopted by him in the conduct of his.own affairs with that which he adopted for the estate. The proof upon this subject shows that, at the very time when the administrator was proceeding to sell the cotton of the estate, he was buying cotton for himself, and engaged in a partnership for the purchase and sale of cotton on speculation. The fact that he was willing himself to incur, with his own funds, the hazard of a cotton speculation, does not demonstrate the conviction of his mind that it was politic to retain the cotton of a decedent’s estate. It is not at all unreasonable, that he should entertain the conviction that his own interest would be promoted by embarking in such a speculation, and yet that the good of the estate required a sale of its cotton. His willingness to incur the hazards of such an operation does not prove that a wise and prudent administrator should have retained the cotton. In so far as the mere making of the sale, in obedience to the
It is obvious that, under this statute, the only person authorized to make the application, is the executor or administrator of a particular sort of decedent, The executor or administrator “ of such decedent” may obtain the order of sale on application. The sort of decedent, whose administrator may obtain an order of sale, is one who was “engaged in mercantile business,” and died leaving a stock of goods, wares, and merchandise, and leaving no surviving partner. Neither the petition, nor the recitals of the court, in this case, show that the administrator was the administrator of such a decedent. We understand the decisions on this subject to be, that the jurisdiction of the court depends upon the proper representation by the proper person. The sale of the stock of goods was void, and the administrator must be charged with the value thereof, as if he had wrongfully converted the same to his own use.
There was no error in allowing voucher No. 21, being a credit of $20 paid D. L. Saunders.
Reversed and remanded.
Dissenting Opinion
I dissent from so much of this opinion as relates to Confederate treasury-notes, and refer to my opinion in the case of Scheible v. Bacho, at this term, for my views on this subject.