Bell's Adm'r v. Nichols

38 Ala. 678

• Court: Supreme Court of Alabama
• Decided: January 15, 1863
• Status: Published

Opinion

STONE, J.

Among the uncontroverted facts of this case are the following : That some time before his death, Frederick Bell, then a resident of the State of North Carolina, made and executed his last will and testament, which was probated and admitted to record in that State, in February, 1846 : That Russell Chapman, the executor therein named, qualified at the same time as executor, and entered upon the execution of said will: That the slaves sued for were then in the possession of one Whitwell K. Bullock, in the State of Alabama, and remained in his possession until 1850, or' later : That, however said Bullock may have held said slaves until March 19th, 1850, his holding, and that of those who claim under him, then became clearly adverse and in his own right, by force of the conveyance he then made of said slaves as his own property : (Graham v. Davidson, 10 Iredell Law, 248 ; Bryan v. Weems, 29 Ala. 427-8 :) That the administrator de boñis non, with the will annexed, the present plaintiff, did not prove said will, nor qualify as administrator, until 1859, much more than six years after the above assertion of adverse ownership by Mr. Bullock ; and that this suit could not have been commenced, and was not commenced until after that time. Upon these plain, uncontroverted facts, it is clear that the statute of limitations of six years operated a complete bar to the present action, under the principle laid down in the case of Manly's Adm'r v. Turnipseed, 37 Ala. 522. We held in that case, that the foreign executor or administrator had, under our statute, a right to sue for assets in our courts; and there being a person capable of suing, the statute would run without the appointment of an administrator in this State. We deem it unnecessary to repeat the argument.

[2.] This principle demonstrates that the plaintiff never can recover in this action ; and we will not, therefore, notice the special exceptions taken below, and argued here. Those exceptions could not affect the main question in this cause, noticed above ; and hence we need not decide the points presented by them.

The judgment is affirmed.