108 Ala. 314 | Ala. | 1895
If the decrees of the probate court, on which executions issued, and which are sought to be enjoined, are void on their face, the decree of the chancellor dismissing the bill for want of equity must be affirmed. All the other questions raised and discussed, if of any merit, are wholly dependent upon this one question.
1. The nullity of the decree in favor of Geo. W. Pryor against himself and Sarah J. Nored, his co-executor,- of date 11th March, 1889, seems to be conceded by appellant’s counsel. The question is no longer an open one with us. Prvor occupied inconsistent and antagonistic relations, which rendered the decree in his-favor against himself and his co-executor entirely void, and its invalidity is not relieved by the fact, that the minor distributees were represented by a guardian ad litem. Hays v. Cockrell, 41 Ala. 75 ; Tankersly v. Pattis, 61 Ala. 354 ; Alexander v. Alexander, 70 Ala. 212 ; Vaughan v. Suggs, 82 Ala. 358 ; Cleese v. Cleese, Ib. 581.
2. The decree of the 9th February, 1891, is anomalous. It is in a proceeding to require Ge.o. W. Pryor, the administrator de bonis non, with the will annexed, wbo had resigned his trust, to settle his accounts. Sarah J. Nored and said Geo. W. Pryor, as the former executors of the will of the deceased testator, were not parties to the proceeding, nor were the sureties on their administration bond, and yet the decree, dual in form, was against -all these, for $1,300. — a de-vastavit alleged to have been committed by said .executors while they were in office.
The sureties on the bond of said Geo. W. Pryor, as administrator de bonis non, appointed as such, oh and after his removal as executor, were not parties' to this'
The decree recites that W. D. Atkinson was, under and by virtue' of section 2283 of the Code, appointed administrator ad litem, on the settlement. And section 2284 provides, that “when, in such proceedings, the estate represented by the administrator ad litem, is entitled to a decree for the recovery of money, or for the possession of real or personal property, such decree shall be rendered in favor of the administrator ad litem for the use of the estate.” The decree in this case,, however, finds no support in these provisions, and in the fact that an administrator ad litem had been appointed, since it was not rendered in favor of such an administrator, as is required by said section 2284 of the Code, but it was rendered in favor of “the present administrator de bonis own, cum testamento annexo,'” When, as appears, there was no such administrator in existence at the time, and it was not rendered in the name of any one purporting to be such administrator.
3. From what has been said, it is plain, that these decrees, from what appears on their face, are void, and no executions ought ever to have issued on them. The primary object of this bill was to have said executions enjoined and quashed. On proper application and showing to the court from which they issued, they would have been quashed, and the decrees on which they issued set aside and held for naught, — their nullity being apparent on their face. A court of chancery wiil not exercise jurisdiction for the purpose of declaring void a judgment or decree rendered by- the probate court, which is void on. its face.-Morgan v. Lehman, 92 Ala. 440 ; Carlisle v. Killebrew, 91 Ala. 351; Glass v. Glass, 76 Ala. 368 ; Baker v. Barolift, Ib. 414.
If- these decrees are set aside, the case stands as if no
