STONE, J.
These two cases are so intimately connected, that we propose to consider them together.
The decision of these cases renders it necessary that we should determine whether the appointment by the probate court of Lowndes, of Mr. Bradley as administrator of Edward Broughton, deceased, was regular or irregular; and if irregular, whether the appointment was absolutely void, or only voidable. Mr. Bradley was appointed administrator generally, and not administrator with the will annexed.
’Our constitutional and statutory provisions, which confer on courts of probate, power to take proof of wills, and to appoint administrators and executors, are the following :
Constitution of Alabama, art. 5, §9: “The general assembly shall have power to establish, in each county within this State, a court of probate, for the granting of letters testamentary and of administration, and for orphan’s business.”
Code, § 670: Courts of probate have, in the eases defined by law, original jurisdiction of:
“1. The probate of-wills.
“2. The granting of letters testamentary, and of administration, and the repeal or revocation of the same.”
“ § 1621. Wills must be proven in the several probate courts, as follows :
* * * * >{< *
“ 3. Where the testator, not being an inhabitant of the State, dies out of the county, leaving assets therein, in the probate court of the county in which such 'assets or any of them are.
“ 4. Where the testator, not being an inhabitant of the State, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought.”
“ § 1630. Whore the testator was not, at the time of his death, an inhabitant of this State, and his will has been. [704]*704duly proved in any other State or country, it may be admitted to probate in the proper court of this State in manner following
Subd. 1 provides for the probate of a will, which has been admitted to probate in another State, on the production of such will and the proceedings duly certified, &e.
“ § 1658. No person must be deemed a fit person to serve as executor:
“2. Who is not an inhabitant of this State.”
“ § 1664,' If no person is named in the will as‘executor ; or if they all renounce, or fail to apply within the time specified in the preceding section, or are unfit persons to serve, the following persons are entitled to letters of 'administration with the will annexed, in the following order:
“1. The residuary legatee.
“ 2. The principal legatee.”
“ § 1665. If such persons fail to apply within such time, refuse to accept, or are unfit to serve, then such letters may be granted to the same persons, and in the same order, as letters of administration are granted in cases of intestacy.”
Ҥ 1667. Courts of probate, within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate, as follows:
% íjí >j<
“ 3. When the intestate, not being an inhabitant of the State, dies out of the county, leaving assets therein.
“4. When the intestate, not being an inhabitant of the State, dies, leaving no assets thereiu, and assets are after-wards brought into the county.”
“§ 1676. The judge of probate may, in any contest respecting the validity of a will, or for the purpose of collecting the goods of the deceased, or in any other case in which it is necessary, appoint a special administrator, authorizing the collection and preservation of the goods of the deceased, until letters testamentary or of administration have duly issued.”
We have copied above the principal provisions of both, the constitution and statute laws of this State, which bear [705]*705on the question o-f the regularity of Mr. Bradley’s appointment.
The appointment of Mr. Bradley was not that of a special administrator under section 1676 of the Code. Iiis appointment was in terms general. Nor was the appointment made under section 1664 of the Code, because the facts authorizing such appointment had not then transpired. Moreover, he was not appointed administrator with the will annexed. The appointment, then, must rest on section 1667, subdivisions 3 and 4, of the Code, or it was improperly made. That section did not authorize the appointment, because Mr. Broughton did not die intestate. The appointment was, then, irregular. — 1 Williams on Executors, 479 to 487.
Having attained the conclusion that the appointment of Mr. Bradley in this case was irregular, we approach the second question — viz., was the appointment void or voidable ?
In the ease of Sims v. Boynton, 32 Ala. 553, we held, that the probate court, in the matter of the appointment of administrators, possessed the properties of a general jurisdiction; and that the fact of appointment carried with it presumptive evidence of authority to mate it. See the authorities therein cited. We announced the same principle in Ikelheimer v. Chapman’s Admr’s, 32 Ala. 676. See, also, authorities cited in the dissenting opinion in that case, delivered by the writer of this opinion. The question above propounded, then, is solved by answering another question — had the probate court jurisdiction to make the appointment ?
We hold, that the jurisdiction of the court to make the appointment depends, noton the selection of the person to be clothed with the.trust, but on the authority of the particular court to appoint a personal representative of the estate. — 1 Williams on Ex’rs, 491; Miller v. Jones, 26 Ala. 247 ; Leonard v. Leonard, 14 Pick. 280; Emery v. Hildreth, 2 Gray, 228; Sharpe v. Hunter, 16 Ala. 759.
Applying this rule to this case, testator, at the time of his death, was not an inhabitant of this State, nor did he die in any county in this State, leaving assets therein. [706]*706No personal representative of his estate had been appointed within the State of Alabama; and he had assets in the county of Lowndes. These facts gave that court jurisdiction ; and the fact that an administrator with general powers, instead of the executor, or an administrator with the will annexed, was appointed, was a question of regularity. It authorized a revocation of the appointment, but did not render it void.
We are aware that, in some of the old decisions, the appointment of an administrator, where there was a will, was said to be void. — Abraham v. Cunningham, 3 Keble, 725; S. C., 2 Mod. 146 ; Graysbrook v. Fox, 1 Plowd. 275.
The tendency of modern decisions, however, upon this as upon many other questions, is, not to pronounce judicial acts void, unless forced thereto by some stern rule of law, or of public policy. The consequences of pronouncing acts voidable rather than void, commend themselves by such a healthy conservatism, that courts should hesitate before declaring void what has passed judicial sanction.
In the case of Ragland v. Gunn, 14 Sm. & Mar. 194, a will had been probated. Subsequently the probate was set aside, and an administrator with general powers was appointed, who proceeded to administer the estate.
Free access — add to your briefcase to read the full text and ask questions with AI
STONE, J.
These two cases are so intimately connected, that we propose to consider them together.
The decision of these cases renders it necessary that we should determine whether the appointment by the probate court of Lowndes, of Mr. Bradley as administrator of Edward Broughton, deceased, was regular or irregular; and if irregular, whether the appointment was absolutely void, or only voidable. Mr. Bradley was appointed administrator generally, and not administrator with the will annexed.
’Our constitutional and statutory provisions, which confer on courts of probate, power to take proof of wills, and to appoint administrators and executors, are the following :
Constitution of Alabama, art. 5, §9: “The general assembly shall have power to establish, in each county within this State, a court of probate, for the granting of letters testamentary and of administration, and for orphan’s business.”
Code, § 670: Courts of probate have, in the eases defined by law, original jurisdiction of:
“1. The probate of-wills.
“2. The granting of letters testamentary, and of administration, and the repeal or revocation of the same.”
“ § 1621. Wills must be proven in the several probate courts, as follows :
* * * * >{< *
“ 3. Where the testator, not being an inhabitant of the State, dies out of the county, leaving assets therein, in the probate court of the county in which such 'assets or any of them are.
“ 4. Where the testator, not being an inhabitant of the State, dies, not leaving assets therein, and assets thereafter come into any county, in the probate court of any county into which such assets are brought.”
“ § 1630. Whore the testator was not, at the time of his death, an inhabitant of this State, and his will has been. [704]*704duly proved in any other State or country, it may be admitted to probate in the proper court of this State in manner following
Subd. 1 provides for the probate of a will, which has been admitted to probate in another State, on the production of such will and the proceedings duly certified, &e.
“ § 1658. No person must be deemed a fit person to serve as executor:
“2. Who is not an inhabitant of this State.”
“ § 1664,' If no person is named in the will as‘executor ; or if they all renounce, or fail to apply within the time specified in the preceding section, or are unfit persons to serve, the following persons are entitled to letters of 'administration with the will annexed, in the following order:
“1. The residuary legatee.
“ 2. The principal legatee.”
“ § 1665. If such persons fail to apply within such time, refuse to accept, or are unfit to serve, then such letters may be granted to the same persons, and in the same order, as letters of administration are granted in cases of intestacy.”
Ҥ 1667. Courts of probate, within their respective counties, have authority to grant letters of administration on the estates of persons dying intestate, as follows:
% íjí >j<
“ 3. When the intestate, not being an inhabitant of the State, dies out of the county, leaving assets therein.
“4. When the intestate, not being an inhabitant of the State, dies, leaving no assets thereiu, and assets are after-wards brought into the county.”
“§ 1676. The judge of probate may, in any contest respecting the validity of a will, or for the purpose of collecting the goods of the deceased, or in any other case in which it is necessary, appoint a special administrator, authorizing the collection and preservation of the goods of the deceased, until letters testamentary or of administration have duly issued.”
We have copied above the principal provisions of both, the constitution and statute laws of this State, which bear [705]*705on the question o-f the regularity of Mr. Bradley’s appointment.
The appointment of Mr. Bradley was not that of a special administrator under section 1676 of the Code. Iiis appointment was in terms general. Nor was the appointment made under section 1664 of the Code, because the facts authorizing such appointment had not then transpired. Moreover, he was not appointed administrator with the will annexed. The appointment, then, must rest on section 1667, subdivisions 3 and 4, of the Code, or it was improperly made. That section did not authorize the appointment, because Mr. Broughton did not die intestate. The appointment was, then, irregular. — 1 Williams on Executors, 479 to 487.
Having attained the conclusion that the appointment of Mr. Bradley in this case was irregular, we approach the second question — viz., was the appointment void or voidable ?
In the ease of Sims v. Boynton, 32 Ala. 553, we held, that the probate court, in the matter of the appointment of administrators, possessed the properties of a general jurisdiction; and that the fact of appointment carried with it presumptive evidence of authority to mate it. See the authorities therein cited. We announced the same principle in Ikelheimer v. Chapman’s Admr’s, 32 Ala. 676. See, also, authorities cited in the dissenting opinion in that case, delivered by the writer of this opinion. The question above propounded, then, is solved by answering another question — had the probate court jurisdiction to make the appointment ?
We hold, that the jurisdiction of the court to make the appointment depends, noton the selection of the person to be clothed with the.trust, but on the authority of the particular court to appoint a personal representative of the estate. — 1 Williams on Ex’rs, 491; Miller v. Jones, 26 Ala. 247 ; Leonard v. Leonard, 14 Pick. 280; Emery v. Hildreth, 2 Gray, 228; Sharpe v. Hunter, 16 Ala. 759.
Applying this rule to this case, testator, at the time of his death, was not an inhabitant of this State, nor did he die in any county in this State, leaving assets therein. [706]*706No personal representative of his estate had been appointed within the State of Alabama; and he had assets in the county of Lowndes. These facts gave that court jurisdiction ; and the fact that an administrator with general powers, instead of the executor, or an administrator with the will annexed, was appointed, was a question of regularity. It authorized a revocation of the appointment, but did not render it void.
We are aware that, in some of the old decisions, the appointment of an administrator, where there was a will, was said to be void. — Abraham v. Cunningham, 3 Keble, 725; S. C., 2 Mod. 146 ; Graysbrook v. Fox, 1 Plowd. 275.
The tendency of modern decisions, however, upon this as upon many other questions, is, not to pronounce judicial acts void, unless forced thereto by some stern rule of law, or of public policy. The consequences of pronouncing acts voidable rather than void, commend themselves by such a healthy conservatism, that courts should hesitate before declaring void what has passed judicial sanction.
In the case of Ragland v. Gunn, 14 Sm. & Mar. 194, a will had been probated. Subsequently the probate was set aside, and an administrator with general powers was appointed, who proceeded to administer the estate. One question made and considered was, whether, conceding the order revoking the will to have been without authority and void, the order appointing the administrator was without the jurisdiction of the court and void ? It was decided, that “the [orphan’s] court [of Mississippi] had jurisdiction of the subject-matter, and of the persons. The fact of the existence of a will does not withdraw the estate from its cognizance. If the executor will not act, it'becomes its duty to appoint an administrator with the will annexed. If a will be produced after the grant of letters of administration, such letters may be revoked; but the acts of the administrator, consistent with law, are confirmed. We do not see, then, that this grant of administration can be regarded as void; though there is no doubt it was erroneous, and might have been revoked.” — See, also, Baldwin v. Buford, 4 Yerg. 16; Wilson v. Frazier, [707]*7072 Humph. 30; Price v. Nesbit, 1 Hill’s Ch. 445, 461; Saddler v. Saddler, 16 Ark. (Barb.) 628; Savage v. Benham, 17 Ala. 119 ; Burnley v. Duke, 1 Rand. 108 ; S. C., 2 Rob. (Va.) 102; Thompson v. Meek, 7 Leigh, 419; Hutcheson v. Priddy, 12 Grat. 85; Kittridge v. Folsom, 8 N. H. 98; Parkman’s case, 6 Rep. (vol. 3) 19; Pettigru v. Ferguson, 6 Rich. 378 ; Sheldon v. Wright, 7 Barb. Sup. 39; Emery v. Hildreth, supra; Riley v. McCord, 24 Missouri, 265 ; Tebbets v. Tilton, 11 Foster, (N. H.) 273; Peterman v. Watkins, 19 Geo. 153.
Applying the principles asserted in Ragland v. Gunn, supra, to each of the cases under discussion, we think they settle the main questions presented by the assignments of error, adversely to each appellant. These principles are also, in strict conformity with the provisions of section 1693 of the Code.
The section last mentioned, as the same appears in the' printed Code, is obscure. The word conducive, in the fourth line, creates the difficulty. We have looked into the manuscript copy of the Code, and find the same word there written conducive. We have no doubt that the true word is and should be conclusive; and that the error originated in transcribing the manuscript. The contest proves o.ur inferences to be correct.
If the probate court of Lowndes had had no jurisdiction of the subject-matter — in other words, the testator being at the time of his death an inhabitant of the State of South Carolina, and dying there — if there had been at the time of the appointment no assets belonging to his estate in Lowndes county, then the appointment of Mr. Bradley would have been absolutely void, and would have been so declared when collaterally assailed. Section 1693 of the Code would exert no influence on such a case. See Treadwell v. Raney, 9 Ala. 590; Wilson v. Frazer, 2 Humph. 30; 1 Williams on Ex’rs, 488 et seq.; Duncan v. Stewart, 25 Ala. 408 ; Matthews v. Douthit, 27 Ala. 273 ; Creath v. Brent, 3 Dana, 129; Sigourney v. Sibley, 21 Pick. 101. See, also, Woolley v. Woolley, 5 B. & Ald. 744 ; Dickinson v. Naul, 4 B. & Adol. 638; Allen v. Hopkins, 13 Mees. & W. 93; Hobart v. Frost, 5 Duer, 672.
[708]*708It is contended for appellant in the ease of Broughton v. Bradley, that the circuit court should have submitted to the jury the question of fraud by Mr. Bradley in procuring the letter of administration to be issued to himself. The evidences of fraud relied on are, that Mr. Bradley did not communicate to the judge of probate the fact that decedent had left a will; and that he represented the assets within the -county of Lowndes at about five hundred dollars, when he knew their value to be 'over two thousand dollars. There was also some testimony, the object of which must have been to disprove the statement in Mr. Bradley’s petition, that decedent owed debts to persons resident in Lowndes county.
We do not think the tendency of the proof was to establish that description or species of fraud, which stranger’s to a judgment may prove, and thus defeat and render void a judgment of a court having jurisdiction in the premises. The argument used above, in favor of holding the appointment voidable rather than void, applies to this feature of the case, equally with that. Moreover, many of the authorities cited above show that the appointment of an administrator with general powers, made in disregard of a valid, subsisting will, is revocable, but not void. See Cow. & Hill’s notes, part 2, 78-9-80 ; Hull v. Hamlin, 2 Watts, 354; Postens v. Postens, 3 Watts & Serg. 127; Baird v. Campbell, 4 Watts & Serg. 191; Atkinson v. Allen, 12 Ver. 619; Hazelett v. Lord, 10 Watts, 101; Crawford v. Simonton, 7 Por. 110.
It is also contended that plaintiff, having complied with section 1934 of the Code, had a clear right to institute his suit; and having that right at that time, if another be permitted to take out letters of administration and defeat his suit, rightfully instituted, then section 1934 does not afford the remedy intended by it.
It is a clear and undisputed proposition that, independent of our statute, no executor or administrator, receiving his authority from the courts of any country or State other than our own, could maintain, as such, any suit in thisS tate. — Story’s Confl. of Laws, § 513, and notes, ed. of 1857 ; Vaughn v. Northrup, 15 Pet. 1; Harrison v. [709]*709Mahorner, 14 Ala. 829, 833, and authorities cited; Carr v. Wiley, 23 Ala. 821.
His right to sue here is derived from our statute. — Code, § 1934.
It is equally clear that, in the absence of such legislation as is prescribed by section 1934 of the Code, when an inhabitant of another State dies, leaving effects in this State, the proper court of the county in which such effects are may grant administration on his estate. — See authorities supra.
This being the case, is there anything in section 1934 which takes away the jurisdiction? There is certainly nothing in its letter, for it expressly recoguizes the right in such cases to grant letters testamentary or of administration in this State. Neither do we think there is any thing in its spirit which sanctions such construction. Our statute is one of comity. It was doubtless framed with a view to favor, without unnecessary expense, the early settlement of estates of non-residents, who happened to own property or choses in action, within this State, (If we hold that an executor or administrator, receiving nís authority under foreign appointment, can, by instituting suit in this State, oust our probate courts of all jurisdiction to appoint, is it not manifest that we put it in the' power of a foreign representative, by hasty action, to close the doors of our tribunals, and thus deprive resideut creditors of their rights to have their claims adjusted in our probate courts.out of the assets found here ? The third axiom of Huberus, which may be regarded as the general law of civilized nations, declares, that “ the rules of every empire from comity admit that the laws of every people, in force within its own limits, ought to- have the same force every where, so far as they do not prejudice the power or rights of other governments or of their citizens.”- — Sto. Confl. of Laws, § 29, and notes to § 38, edition of 1857. The principle contended for in this case, would give to the foreign laws the same force which they have within the limits oí the State or nation by which they were enacted, even to the prejudice of the rights of our citizens. Such generosity is neither required nor expected [710]*710of any nation or State. — See Kennedy v. Kennedy, 8 Ala. 391, 395; Childress v. Childress, 3 Ala. 752.
Oar statute, not creating an exclusive jurisdiction, must be held to confer only a cumulative remedy. — Anon. 3 Dyer, 339 a; Hunt v. Wilkinson, 2 Call, 41; Jewett v. Jewett, 5 Mass. 275; Bigelow v. Bigelow, 4 Ohio Rep. 138, 147.
If, under this construction, it be thought that a foreign representative suing in our courts is always at the mercy of a litigious debtor, the answer is, that the legislature can correct the abuse. Perhaps, in such case, a statute, prohibiting the appointment, after suit brought, of a resident administrator, except on satisfactory proof that the estate was liable for, or owed debts to residents of this State, would remedy the evil, without imparing the right.
It is objected to the plea filed puis darrein continuance in this cause, that it proposes to be in bar of the entire action, when the facts stated Jn it do not bar the entire action.
The previous decisions of this court hold, that a plea which assumes to answer the entire action, and yet offers only a partial defense, is bad on demurrer. We have, in this respect, followed the English rule. — Stein v. Ashby, 30 Ala. 363; Bryan v. Wilson, 27 Ala. 208; Deshler v. Hodges, 3 Ala. 509.
While it is not our purpose to shake the authority of the cases cited, so far as those cases go, we think extreme technicality in the matter of pleading should not be encouraged. Our Code has done much to strike down the former, sometimes, shadowy structure, which, we think, did not well comport with the massive proportions of the common law.
In the case of Deshler v. Hodges, the question did not arise, and the-court simply stated the rule, holding that it did not apply in that case. In Bryan v. Wilson, the action was against three, and two only of the defendants pleaded a defense personal to themselves. In the commencement of their plea, they employed the words actio non, [the plaintiff ought not to have or maintain his action aforesaid.] This was within the rule; for the plea [711]*711offered no reason why the action should not be maintained against the third defendant.
In Stein v. Ashby, the defendant pleaded, in bar of this action, a defense which barred only a portion of the damages. This also was within the rule.
The plea in the present case professes to be in short by consent. It contains no such words as action non, nor, in bar of this action. Neither dobs it, in terms, propose to bar the entire suit. True, it omits the word farther, which is usually employed in pleas puis darrein continuance ; but we think it contains no averment, which is inconsistent with such relief. It simply sets out the facts., This, we think, under the Code, (§ 2287,) and the case of Deshler v. Hodges, amounts to a good partial defense to the action. — See 1 Chit. Pl. 660; 3 ib. 1238; McGowan v. Hay, 4 J. J. Mar. 223.
We are aware that, in the case of McDougald v. Rutherford, 30 Ala. 253, principle 3, a rule is asserted, different from what we have stated above. That suit was brought before the' Code went into effect, and is consequently not governed by its provisions. We place our present opinion mainly on the provisions of the Code, which, in a great degree, dispense with the formal parts of pleading.
It results from what we have said, that there is no error • in either of the records under consideration.
Judgments affirmed.