27 Ala. 273 | Ala. | 1855
The doctrine of the common law, in force in this State, is, that when the Probate Court has granted letters of administration to a person entitled to and capable of discharging the trust, it cannot make any new appointment of an administrator of the same estate, until the occurrence of one of those events or disabilities which, either temporarily or perpetually, vacates the office — as the death, or resignation of the party, the repeal of his authority, &c. If it makes any such new appointment before the occurrence of any one of
Whore an administratrix has been duly appointed by a probate court'in this State, and has qualified under such appointment, and has never resigned, and has not reported the estate either solvent or insolvent, a decree rendered by that court within eighteen months from such appointment, “ that said administratrix go hence discharged from further liability as such administratrix”, is utterly void. — Enicks and Wife v. Powell, 2 Strobhart’s Eq. R. 196. It does not destroy or abridge her- rights or liabilities as administratrix, nor authorize the appointment of an administrator de bonis non of the same estate. If she has received assets for which she has not duly accounted, or which she has not duly administered, she may be proceeded against in that court precisely as if no such decree had ever been rendered. If since her appointment as administratrix she has married, the proceedings ought to be against her and her husband as administrator and adminis-tratrix- of the estate. — McGinty v. Mabry, 23 Ala. 672 ; 2 Wms. on Ex’rs, 632-633 ; Pistole v. Street, 5 Porter’s R. 64.
Whether that part of the decree in the present case which confirms and allows the account of the administratrix as shown in the record, is of any validity, we do not now determine. If it be valid for any purpose, it cannot be conclusive beyond the very items mentioned in that account, and cannot protect her from liability as to all matters not mentioned in the account.
The administratrix in chief has not been displaced, nor has she resigned. The record does not show anything which amounts to a repeal of her authority, nor to a bar to her liability for matters not mentioned in the account above referred to, even if it be conceded that she is protected to the extent of the items mentioned in that account. — Gayle v. Elliott, 10 Ala. 264 ; Norman v. Norman, 3 Ala. 389.
The plain result from what we have said, is, that the appointment of the appellant as administrator de bonis non, is void, — that he has not thereby acquired any rights as administrator, and that there was no error in dismissing his petition.
The decree is affirmed.