Daly v. Mallory

123 Ala. 170

Opinion

McCLELLAN, C. J.

Prior to April 23d, 1873, there was not statutory limitation upon the term of office of general administrator, the statute theretofore of .force being in the following Avords-: “Each judge of probate must also appoint a,suitable person as.general administrator in his county, who must take charge of the estates of deceased persons, or act as special administrator, in those cases in which no other per sons., entitled thereto will administer,' and no other person is appointed by the court.” By an act approved on said day —April 23, 1873 — this statute was amended by adding thereto the last clause as the statute with the amendment is codified at section 2027 of the Code of 1886, viz.: “and his office shall expire with the expiration of the term of the judge who appointed him, unless the succeeding judge shall continue him in office, which the succeeding judge may do; and the same bond, if otherwise sufficient, shall be good, and the administrator and sureties bound thereon.” The provisions as to the bond of such administrator found in section 2028 of the Code are the same now as before the act of 1873. They are : “The general administrator of the county must give bond, with at least- two sufficient sureties, in an amount to be prescribed by the judge of probate, sufficient to secure all persons interested, payable to the judge of probate, and conditioned faithfully to administer all estates which may come to his hands as such general administrator ; which bond . must be approved by such judge.” With the amendment of 1873, noiv constituting a part of section 2027, in terms incorporated in the bond of a general administrator, its condition would be substantially this: If the said general administrator shall faithfully administer all estates which may come to his charge as such administrator during the term of his present appointment or during any subsequent period for which he may be continued in office, then this obligation to be void, otherwise to remain in full force and effect. And such condition, of course, would not be broken by unfaithfulness on the part of the principal in respect of an estate of which he should assume administration after the expiration of the term of office of the judge who appointed him county administrator unless lie had been continued in office by the succeeding judge. I-Ience, it must be that a complaint claiming as upon a breach of such condition in respect of an estate coming to the hands of the principal after the expiration of the term of office of the probate judge who appointed him general administrator should show that he had been continued in office by the succeeding probate judge, else it is-bad on demurrer. And the question presented'by the appeals in the cases at bar is, whether the complaints, respectively, show a continuance in office of the ■general administrator by the succeeding judge within the meaning and intent of the statute; the devastavit in each case being laid in respect- of an estate which came to the hands of the principal obligor after the expiration of the term of office of the probate judge originally appointing him general administrator.

The first count of the complaint in the -case of Daly v. the Executors avers that the succeeding judge “did duly continue” the' administrator in office, etc., etc. It would seem that this is- a sufficient averment of the fact of such continuance in office as the statute contemplates under our system of pleading, whether - a due continuance by the succeeding judge involves the making and minute entry of a formal order of continuance- or not, since it is only necessary ordinarily in such case.s to allege the collective ■ fact of continuance) • leaving-whatever may be essential thereto in the way of- orders, letters of administration and the like to- be brought- forward in the evidence. But as the real merits of each of the cases must turn ■ upon a consideration of what amounts to a due continuance in office, we need not pass upon the point just stated - with- reference to the first count of the complaint in one -of them. The' real facts assumed to be in both cases in the arguments of counsel, and Avhich are certainly found in the -case of Beese, and' as certainly in that of Daly if"we are to give the rule that pleadings must be construed most strongly against-the pleader the operation which counsel for appellees in that case insist upon, are-that the-administrator, one J. F. White, was appointed by Hon.-Pi G. Wood, the probate judge of Dallas county, at the commencement of the latter’s-term of office which-began-in November, 1880, then gave-the bond now- sued on,-and continued in office throughout'and was in office at thé end Of the term of the probate judge appointing-him; that-said Wood was re-elected in August, 1886, to succeed himself in the office of probate judge for the term com mencing on the first Monday in November following, and qualified and entered upon said office and continued therein during said term, that said judge upon such reelection and induction to office, nor during said term, made no appointment of other person to the office of general administrator of the county, nor did lie make or enter any formal order continuing said White therein; but that he continued after the commencement of this second term as he had during the first to treat White as the continuing general administrator of the county, and committed to him as such the administration of numerous estates by letters of administration issued to him from time to time commencing as early as November 16th, 1886, and continuing to said White’s resignation; and that among the estates so committed to said White Avere those of Bridget Corcoran and Christine Heinz in respect of Avhich the devastavits laid, respectively, in these cases Avere committed, letters of administration in the latter having been issued to White on November 16th, 1886, and in the former on May 11th, 1887. There can be no question but that on these facts White Avas in the ordinary sense of words continued in the office of general administrator by Judge Wood upon the latter’s induction into office in November, 1886. It Avas Wood’s duty to keep the office filled, to keep an incumbent in it. This duty he could perform on the commencement of his second term in at least two ways: He could either make a neAV appointment, thereby initiating a neAV term of office in the general administratorship, or he co.uld affirmatively treat White as still holding the office, thereby not initiating a new term at all, but merely extending an existing term. He did not adopt the former course: he made no new appointment either of White or other person. But he in point of- fact adopted the latter: He allowed White to proceed with the administration of estates already in his hands without interim, let,' break or hindrance, and he affirmatively recognized White’s continuance in the office by committing to him as such officer the first estate requiring the services of a general administrator — and this within a few days of the commencement of his own term as judge of prohate — and every other estate proper to go into the hands of the general administrator; and White by 'virtue alone of such continuance in office proceeded to administer all estates thus left in his hands or committed to him after the beginning of' the judge’s new term. ■ It is obvious that the probate judge did' everything that was possible for him to do in respect of continuing White in office, except that he did not enter a formal order or memorandum to that end or evidencing the fact on the minutes of his court. And the sole remaining inquiry is: was such order essential to an efficacious legal continuance of White in office? It is insisted such order was essential for that in section 789 of the Code it is made the duty of the judge of probate “to keep minutes of all Irs official acts and proceedings; and, within three months thereafter, to record the same in Avell bound books.” Of course, on the assumption that affirmative action on the part of Judge Wood was necessary to continue White in office, such continuance in office is an official proceeding or act of the probate judge, and should be entered on the minutes and afterAvards recorded. But it does not folloAv from the fact that the judge of probate failed to do his duty in this connection — failed to note and record the fact that White Avas continued in office — that White was not so continued — that the fact of continuance itself did not exist. The collective fact of such continuance clearly appearing from the absence of appointment of his successor, his continued administration in the probate court of estates which had already come to his hands and the affirmative acts of the probate judge in granting to him as general administrator letters upon a number of estates after the expiration of the term of office of the judge appointing him, is not, in our opinion, emasculated by the judge’s mere failure of duty to make a record of the fact, Avhich is as clearly shown by the aA^erments of these complaints as if the record had been made. Again, it is insisted that the averments show a hiatus in White’s tenure of the office, in that no letters of administration were issued to him immediately upon the induction into office of the .succeeding probate judge. This contention would be as apt if there had been a formal -order and entry thereof made a week or a day -after the- judge’s term began. ■ It is untenable upon reason. There is no hiatus in either case. In both the tenure is to be held to have been-unbroken, and the letters or the order, as the case may be, are to be taken as the evidence of the fact that the administrator has been continued in office from the moment at which but for such continuance his-term Avould haAre ■ expired. It-is further contended that the sureties, entitled, as they are, to stand upon the letter of their obligation, .cannot be held in the absence of a formal order of conk nuance; the idea being that the condition of the bond,-Avith ¡the statute incorporated into it, requires such order. But the letter of -the bond requires only- that the administrator shall be. continued in office by the succeeding probate judge, and if, as Ave think, an efficacious -continuance may be made without such formal 'order,- the letter of the condition is filled by the continuance shown in these cases.

■ Our conclusion, therefore, is that on the averments of the-complaints there avus a.continuance of White in the office of general administrator of Dallas county by Judge Wood upon the latter’s succession to the office-of probate judge for the term commencing in November, 188G. Some of the counts in the complaint of Daly are faulty on the principles Ave have declared; but the first count in that, complaint we hold to be sufficient. So in Reese’-s case,- some of the counts clearly show' a- continuance of White in office by the probate judge -by a continued recognition of him as. general administrator in the issuance to him of letters of administration upon numerous estates after the expiration of Judge Wood’s first term, including the estate in respect of which the suit is instituted Avhich is alleged-to have been!formally committed to White as such administrator on November 16th, 1886, a feAV days after Wood’s induction into office for the current term, and in otherwise dealing Avith him in that capacity. There being thus good counts in the complaint in each of the cases, the city court cured in sustaining the demurrers to the complaints as a whole and to such counts specifically.

This cause has been twice argued at the bar. - It has been argued upon either hand on both occasions upon the assumption that it was necessary under the statute for a- succeeding probate judge to affirmatively continue the general administrator, appointed by his predecessor, in office, and so we have- treated the ease here. • We are not, however, to be understood as so deciding. To the contrary, in view of the history of legislation on the subject, it may be that our statute is to be held to mean merely that the judge of probate may allow the general administrator to'continue in office, and that he will so continue in the absence of action on the part of the judge affirmatively indicating an intention not to allow him to so continue. .

Beversed and remanded.