114 Ala. 676 | Ala. | 1896
This was an application by the appellant to the the court of probate of the coxxnty of Jackson, for the axicillary probate of the last will and testament of John F. Anderson, deceased, and for the grant to her of ancillary letters testamentary thereoxx, and for the revocation of letters of administration, as in pases of intestacy, the court had graxxted to the appellee, as general administrator of the county. . At the time of his death, the testator was a resident citizen of the county of Franklin, State of Tennessee, and on the 15th’ day of January, 1894, his last will and testament was admitted to probate by the county court of said county; and of the execxxtors nominated by the will, the appellant alone applied for and obtained letters testamentary. The present application was filed April 8, 1895 ; and in and by it the appellant made no offer to give bond and security for the performance of the duties of executrix, .nor was,such offer made on, the hearing; nór was there
The Code, section 2037, authorizes judges of probate to issue letters testamentary to executors of will regularly probated,who are non-residents of the State, “upon like bond and security, and upon the same terms, conditions and requirements, as are required of the citizens of this State.” The succeeding section reads : “When the will has been probated in another State or Territory, before issuing letters testamentary thereon to a non-resident executor, the judge of probate must require him to file in court a copy of the will under which he is appointed, together with a certificate of the judge of the court in which the will was probated, that such will was regularly proved and established, and that letters testamentary were issued to him thereon, in accordance with the laws of the State or Territory in which such original letters were granted, and also a certified copy of the bond or other security, if any, on file in the court from which such letters were issued.” These sections originally formed part of an act, approved February 17, 1876, embodied in the Code of 1876, sections 2379-84. Prior to that enactment, non-residents of the State, whether executors of wills of original or of ancillary probate, were incapable of serving as executors. The words of the pre-existing statute were : “No person must be deemed a fit person to serve as executor who is not an inhabitant of this State ; ’ ’ and removal from the State was cause for revocation of letters testamentary. (Revised Code of 1867, §§ 1796, 2017). Reading and construing the sections, as they must be read and construed, with reference to the statutes which they superseded and repealed, it is apparent, the primary, controlling legislative intent, was the removal of inhabitantcy or residence within the State, as an essential qualification of an executor; conferring upon the nonresident the right to letters testamentary which had been limited to the resident executor. Words more significant and expressive of this primary, controlling, legislative intent, could not have been employed, than are
An executor not relieved or exempted by a provision in the will of the testator, is required to “give bond, with at least two sufficient sureties, payable to, and to be approved by the judge of probate of the county having jurisdiction of the estate, in a penalty equal to at least double the estimated value of the real and personal property of the estate, and conditioned to perform all the duties which are, or may be by law required of him as such executor or administrator.” — Code of 1886, §2024. It is further declared, that “the judge of probate is liable for any neglect or omission in not taking bond, or for taking an insufficient bond, from any executor or administrator ; and any person injured thereby, may maintain an action against such judge and his sureties, and recover according to the injury proved.” — Code of 1886,§ 2033. These sections, and the sections of later enactment, are in pari materia, and must be taken in connection.— Sutherland, Stat. Con., § 288. Letters testamentary, or letters of administration, granted without the taking of bond as the statute requires, are not esteemed void; they are irregular, voidable, and because of the irregularity subject to revocation on the application of any party interested. — Ex parte Maxwell, 37 Ala. 362 ; Cunningham v. Thomas, 59 Ala. 158; Leatherwood v. Sullivan, 81 Ala. 458. While this is true, when the validity of the grant is drawn in question collaterally, a judge of probate is bound to the duty, and a duty he should not, and can not, without peril to himself and the sureties on his official bond, forego, of requiring the bond and security as the condition upon which the letters may issue. The protection of all who may have interests involved, and his official oath demand performance of the duty.
The other theory, that as the appellant had given bond
The statutes, (Code of 1886, §§ 2010-11), require the executor of a will of original probate in the State, to apply for letters testamentary within thirty days after the probate, and if within that period he fails to make application, his right to letters is waived; it is an abandonment, a renunciation of the right, as effectual in legal contemplation, as a renunciation in writing, filed in the court from which the letters must issue. Wheat v. Fuller, 82 Ala. 572. The manifest purpose of these requirements, is to avoid a vacuum of indefinite continuance in the administration of the estate, and to quicken the diligence of the person having the right to qualify as executor, in its exercise. In their original enactment, the statutes, as is apparent from the terms in which they are expressed and the state of the existing legislation, had exclusive reference to the resident executor of wills of original probate in this State, and there could not have been occasion or reason for an extension of them to the non-resident executor of a foreign will, of which there was only an ancillary probate. We do not doubt, that upon such probate, the executor must within thirty days thereafter apply for letters testamentary, or the right to letters will be regarded as waived and lost; to this extent, the statutory requirements must be extended. But we can not assent to the proposition, pressed by appellee, that the time within which the application must be made, is to be computed from the original or domiciliary probate. If that construction of the statutes prevailed, it would operate often to thwart the right of the non-resident executor to letters testamentary, which the'particular statutes we are considering, are' intended to secure. Nor can we assent to the broad proposition pressed by the counsel for the appellant, that as letters testamentary can not be granted, until there is probate of the will, the time within which application for them must be made, is, in all cases, to be computed from the ancillary probate. That is doubt
The appellant was a resident of the State of Tennessee, and whatever may have been the necessities of administration in this State, the court of probate could not compel her to probate of the will, and to the taking or renunciation of letters testamentary. The assets within the jurisdiction of the court, consisted exclusively of real estate, from a part'of which, the testator having leased or rented it in his life, rents were accruing ; and other parts, if not suffered to lie idle and unproductive, there was a necessity to rent. These lands, by the will of the testator, the' executors are empowered to sell publicly or privately, as may be most advantageous ; and there is a direction to the executors to terminate by notice, an agreement the testator had made with the Memphis & Charleston Railroad Company for the building of their machine shops on a part of the lands, because, as expressed in the will, it had been many years since the agreement was made, and the company had failed to comply with it. The power of sale, under the statute, would have devolved on the appellant solely, as executrix, if she alone had qualified and taken letters tes
The court of probate having before it, and in its custody, a duly authenticated copy of the will of the- testator, very properly admitted the same to probate. The granting of the probate, according to the statute, and the principles of the common law, required a revocation of the grant of administration, as in cases of intestacy, to the appellee. Under the particular facts, the appointment of the appellee as general administrator, with the will annexed, we deem to have been properly made. We find no error in the decree of the court of probate, and it must be affirmed.
Affirmed;