65 Ala. 442 | Ala. | 1880
— It is essential to the validity of a grant of administration de bonis non, that the preceding administration should have become vacant, by the resignation, removal, or death of the administrator. But, an order of the Court of Probate, granting the administration, can not be collaterally impeached, because the record does not affirmatively disclose the vacancy. In the grant of administration, that court derives its jurisdiction from the constitution, and is esteemed as a court of general,' rather than of limited, inferior jurisdiction : nothing is intended to be without its jurisdiction, except that which so appears specifically. ‘ The record of the Court of Probate discloses that Bouton was, in the capacity of sheriff, appointed as administrator de bonis non; and though there may not be of file any written resignation by Waters, of his administration, nor any entry of record of the fact of his resignation, that, or his removal, is necessarily involved in the regularity of Bouton’s appointment, and, in all collateral proceedings, must be presumed,
Though an administrator may have resigned, or been removed, a settlement of his administration in the Court of Probate may be compelled at any time thereafter, within the period of twenty years, by any party in interest. The jurisdiction of the court, in the matter of the settlement of administrations, whether the settlement is by a continuing administrator, or by one whose authority has ceased, is derived wholly from statutes. In the exercise of such jurisdiction, it is a court of inferior, limited jurisdiction, and all its proceedings are subject to the general principle, prevailing in reference to all such jurisdictions, that the record must affirmatively disclose every fact essential to the validity of the sentence it may pronounce. A continuing administrator may make a partial,' or a final settlement of his administration. Whether he makes the one or the other, notice of the day appointed for the settlement, and of its character —whether final, or partial — must be given,' It is an indispensable element of the jurisdiction of the court; and if it is not affirmatively shown by the record that it was given, the sentence the court may pronounce is void. All who rely upon the sentence or decree of the court, must show, not only that the court had jurisdiction to make such a sentence or decree, but that the necessary steps to render that jurisdiction effectual in the particular case were properly taken. 1 Smith’s Lead. Cases, 2d part, 7 th ed., 1132; Camp v. Woods, 10 Watts, 118.
The settlement of the administration of Waters, now relied on as a bar to the present application, had its inception in the filing by him in the Court of Probate, on the 2d day of December, 1862, “ of his account-current and vouchers for a partial settlement of said estate,” are the words of the record. The court ordered notice to be given, by publication for three successive weeks, that the third Monday in the ensuing February was the day “ set apart for said settlement.” No other proceeding seems to have been had, until the 1st day of June, 1863, when, as the record recites, “ this came having been set for hearing on the 12 th day of January, 1863, and by this court regularly continued, to this day,” &c., the court proceeded to a final settlement of the administration, and rendered a decree of distribution, and of discharge of Waters as administrator. That notipe of an intended annual (or par-i tial) settlement will not authorize the Court of Probate to proceed to a final settlement, has been twice decided in this court, and is self-evident, from the statutory provisions which bound and circumscribe its jurisdiction. — King v. Collins,
We have said, the jurisdiction of the Court of Probate, in the settlement of administrations, is derived from statute, and in its exercise the court must be deemed an inferior court of limited jurisdiction, bound to disclose on its records affirmatively the facts upon which jurisdiction depends. We speak of the jurisdiction of the court, as it was defined by our decisions at the time the proceedings were had, and the decree rendered, relied on as a bar. Their validity depends upon the law then of force, and not subsequent statutory or constitutional provisions, which may have changed the character of the court, and of its jurisdiction. Under the constitution of 1868, and our present constitution, in the settlement of administrations, the court would be regarded as of general jurisdiction. — Cons. 1868, § 9, Art. 6 ; Cons. 1875, § 9, Art. 6. But, so regarding it, the record affirmatively showing the final settlement was made without notice to the parties to be affected by it, the decree would still be void.
The Court of Probate was in error, in holding the pretended final settlement of June 1st, 1863, a bar to the present application. It is unnecessary to notice the other errors assigned, as they may not arise again in the course of the future proceedings.
Reversed and remanded»
