| Ala. | Jan 15, 1847
The jurisdiction of the court of chancery, to make distribution of the slaves in controversy, is attempted to be maintained, because the slaves never came to the possession of the administrator in Tennessee, but that he has colluded with the widow of the deceased, and permitted her to bring the slaves in controversy to this State, although they are assets of his intestate. That suit cannot be brought in the name of the administrator, as they never came to his possession, and that no administration can be granted here, because the slaves were not in this State, at the time of the death of the intestate.
The foreign administrator certainly cannot sue in this State for the recovery of these slaves, in virtue of his letters granted in Tennessee, unless he proceeds according to the statute, and records his letters in this State; and as he is required to execute a bond, and deposit it in the proper orphans’ court, before he receives the effects, it is in effect an ancillary administration. [Clay’s Dig. 227.] The same act provided for the appointment by the orphans’ court, of an administrator in this State, in such a case ; that is, where the intestate had no known place of residence in any county of this State, administration maybe granted in any county, where the goods and chattels, and debtors, or any part thereof, of such testator or intestate may be. [Clay’s Dig. 303, 33.] It is therefore very clear, that such a case as this, is expressly provided for by the statutes cited. The doctrine contended for, that the orphans’ court has no jurisdiction unless the property was in this State at the time of the death of the intestate, is not warranted .either by the terms of our acts previously cited, or by the object to be effected by the law, as the necessity for a representative of the estate, would be the samé, whether the property was here at the death of
In Logan v. Fairlie, 2 Sim. & Stu. 282, the vice chancellor held, that where an executor in India sent money to England to discharge legacies there, a suit could not be maintained in chancery for the legacy, unless administration had been taken out in England, and the administrator made a party to the suit. In that case, it is to be observed, there was no specific appropriation by the executor of the money to the payment of the legacies: the money was therefore held to be assets of the estate, about which no decree could be made, until an administrator was appointed. See also cases on brief of the defendant in error.
In this, as in other instances of general rules, there may be possible exceptions, and such appears to be the case where the executor colludes with a debtor of the estate, there a creditor may be allowed in equity to proceed against the assets in the hands of the debtor. And in England, it seems the insolvency of the executor, and his refusal or inability to act, might also be a sufficient reason for permitting the creditor to sue. [Alsager v. Rowly, 6 Ves. 748; Burroughs v. Elton, 11 Id. 29.] But in these cases, it is to be observed, there was a legal representative of the estate, who was either unable or refused to act, and if the creditor had not been permitted to proceed against'the assets, he would have been without remedy.
The case of McDowel v. Charles, 6 Johns. Ch. 132" court="None" date_filed="1822-05-13" href="https://app.midpage.ai/document/mdowl-vcharles-5550515?utm_source=webapp" opinion_id="5550515">6 Johns. Ch. 132, is an instance, where a bill was permitted to be filed, where there was no legal representative. There, there were but two persons entitled to representation, and the one in possession of the fund, procured the husband of the other to be removed from the administration, and if she could not sue in equity, she was^without remedy, as there were no creditors to take out letters of administration. This case only proves, that the rule must yield to the stern necessity of the case, where it is necessary to prevent a failure of justice. No such necessity exists here,.as the plaintiffs will themselves be entitled to administer if the widow refuses.
The courts of chancery of this State have no power to grant letters of administration; that is conferred on, and be
The distinction between this case and that of King v. Calhoun, 5 Ala. 523" court="Ala." date_filed="1843-06-15" href="https://app.midpage.ai/document/calhoun-v-king-6502037?utm_source=webapp" opinion_id="6502037">5 Ala. 523, is, that there administration had been, granted in Georgia, and the administrator having brought the assets to this State, and they being about to be sold for the payment of his debts, after his decease, chancery interposed to prevent the destruction of the fund, until the estate could be settled, and the amount in the hands of the administrator for distribution ascertained. [See also, Treadwell v. Rainey, 9 Ala. 590" court="Ala." date_filed="1846-01-15" href="https://app.midpage.ai/document/treadwell-v-rainey-6502881?utm_source=webapp" opinion_id="6502881">9 Ala. 590.]
From these considerations, it appears, that no decree can. be made in a case circumstanced like the present. We thought at first, however, that the bill might be considered as a bill quia timet, and retailed to enable the complainants to take out letters of administration, there being strong grounds to apprehend from the previous conduct of the parties, that the slaves would be removed from the state, pending the application for letters from the orphans’ court, and we so announced our judgment. Since then, and during this court, the same question has again come under consideration in the case of Watson v. Bothwell, and further reflection has satisfied us, that there is no ground for the jurisdiction of chancery, to entertain the bill for any purpose.
A statute of the state, not brought to our notice in the argument of this cause, fully provides for the exigency of such a case as the present, and renders a resort to chancery unnecessary. The act declares, that “ during any contest about the validity of a will, the infancy, or absence of the executor, or administrator, and in such other cases not otherwise provided for,'1'1 a temporary administrator may be appointed, with such limited authority as the case may require, and when necessary, “ such administration may be granted forthwith, without any citation.” [Clay’s Dig. 222, § 10.] Un
This bill is wholly wanting in any such allegation ; no application was made to the.orphans’ court, and none appears to have been contemplated ; the bill is therefore wanting in equity, and should be dismissed.
Decree heretofore entered, set aside, and bill dismissed without prejudice.