Landford v. Dunklin

71 Ala. 594

• Court: Supreme Court of Alabama
• Decided: December 15, 1882
• Status: Published

Opinion

BBICKELL, C. J.

-The jurisdiction of the court of probate to order and decree the sale of lands descended or devised, for the payment of the debts of the ancestor or testator, or to make equal distribution to and among heirs or devisees, is derived from statute. Before it can be affirmed that jurisdiction exists, the record of the proceedings of the court must show affirmatively that a proper application, an application showing the necessity for the sale, has been preferred by the proper party. The only party having capacity to prefer the application is the personal representative. When, by the proper party, the application is preferred, stating or averring the facts which authorize the court to exercise jurisdiction, by operation of law jurisdiction is acquired; and if jurisdiction is acquired, irregularities, or even actual errors may intervene, without affecting the validity of the proceedings when drawn in question collaterally. The court is presumed to have adjudged every fact and question essential to the validity of the order or decree. "Within its jurisdiction and duty rests the decision of every question occurring in the cause, and whether the decision be correct or erroneous, it is binding on every other court, until reversed by a court of appellate jurisdiction, upon a direct proceeding for its reversal. The court of probate, in decreeing the' sale of the lands in controversy, adjudged, and was bound to adjudge, that the petitioner, Hunter, was the administrator of the intestate, Cowling ; that the personal estate of the intestate was insufficient for «the payment of his debts, and for that purpose there was a consequent necessity to sell the lands.—Florentine v. Barton, 2 Wall. 210; Grignon v. Astor, 2 How. 319.

The fact that Hunter was, as he averred, the administrator of the intestate, that he was the proper party to make the application for the sale, is as immediately involved, adjudged, and finally adjudged, in the decree of sale, as is the fact of the insufficiency of the personal estate for the payment of debts. The one fact is not more open to evidence and controversy, when the proceedings are assailed collaterally, than is the other. If in either aspect the decree is opened, the facts again litigated, the finality and conclusiveness of the decree are impaired, and all security in performing it is destroyed. Upon this ground I am, therefore, of opinion, that in this case there can be no inquiry whether Hunter was, or not, administrator, when he filed the application and obtained the decree for the sale of the lands.

There was a grant of administration to Hunter, as sheriff, and its validity is now drawn in question, because at the time of the grant there was a general administrator of the county. The statutes manifestly contemplate that the court of probate, in committing administrations, shall prefer the general administrator to the sheriff or coroner. And it is irregular to appoint the sheriff or coroner, while there is a general administrator capable of acting, unless in the particular case there may be facts and circumstances which would render it improper to commit the administration to him. The irregularity may render the grant subject to revocation, voidable, but not void.—Burnett v. Nesmith, 62 Ala, 261; Burke v. Mutch, 66 Ala. 568.

The jurisdiction of the court of probate to grant.administrations is derived from the constitxrtion, is general and unlimited; and when its sentences are drawn in question collaterally, they are protected by the presumption extended to the judgments and decrees of all courts of general jurisdiction.—Coltart v. Alen, 40 Ala. 155; Russell v. Erwin, 41 Ala. 292; Curtis v. Williams, 33 Ala. 570.

The statutory system subjecting lands descended or devised to administration, rendering them liable to the payment of the debts óf the ancestor or testator, conferring upon the personal representative authority to rent them, or to intercept the descent, or the taking effect of the devise, by obtaining from the court of probate a decree to sell them for the payment of debts, or to make equitable distribution to and among the heirs or devisees, has long been construed as vesting in the personal representative the right and capacity to maintain all necessary suits to recover possession of them—Philips v. Gray, 1 Ala. 226; Masterson v. Gerard, 10 Ala. 60; Long v. McDougald, 23 Ala. 413; Golding v. Golding, 24 Ala. 122; Russell v. Irwin, 41 Ala. 292.

In Long v. McDougald, supra, the court held the representative of an insolvent estate was not entitled to maintain ejectment to recover the possession of the lands of the intestate or testator. The decision induced the enactment of the statute, now embraced in the Code, conferring on the representative of an insolvent estate the capacity and right to maintain any action for the recovery of lands, which could be maintained if the estate were solvent.—Code of 1876, § 2588. The effect of the statutory system, and the result of the decisions, is, that the personal representative, because of the authority over the lands with which he is clothed, is entitled to maintain any action for the recovery of lands, which the heir or devisee can by the common law maintain. The right of the heir or devisee yields to the right of the personal representative when he elects to assert it.—Tarver v. Smith, 38 Ala. 135.

The bill of exceptions shows directly and affirmatively that Iiunter, as administrator, made sale of the lands upon terms different from the terms prescribed in the decree of sale; that he reported the sale to the court of probate, and it was confirmed. Subsequently, the purchase-money was paid to him, and he executed a conveyance to the purchaser. The confinpation of the sale may have purged the irregularity of a sale upon terms different from the terms prescribed in the decree. That question we do not now consider. But Hunter made no report to the court of probate of the fact that the purchase-money had been paid; nor was any application made to the court for an order directing a conveyance to the purchaser; nor did the court order such conveyance. The present statutes, conforming substantially to the pre-existing statutes, require the personal representative making sale of lands, under an order or decree of the court of probate, to report the sale to the court for confirmation. If the sale is confirmed, then, upon the application of the purchaser, or of the personal representative, showing the payment of the whole of the purchase-money, the court is required to order the personal representative, or such other person as the court may appoint, to make to the purchaser a conveyance “ of all right, title and interest which the deceased had in the lands at the time of his death.”—Code of 1816, § 2468.

The title of lands is never in abeyance; and it is self-evident the statutes intend that the title shall remain in the heirs or devisees, to whom it passed by operation of law, until by a conveyance, executed under the order of the court, it is divested, and vested in the purchaser. Without the order of the court to execute the conveyance, the personal representative has no authority to execute a conveyance which will pass the title. The court is the vendor, not the .personal representative, and may in its discretion appoint some other person than the representative to execute the conveyance.—Hutton v. Williams, 85 Ala. 503. It is settled by a long line of decisions in this court that under a sale of lands made in pursuance of an order or decree of the court of probate, the title of the heirs or de-visees is not divested until a conveyance is executed by the order of the court. A conveyance executed without such order, in a court of law, is wholly inoperative.—Lightfoot v. Doe, 1 Ala. 415; Cummings v. McCullough, 5 Ala. 324; Perkins v. Winter, 7 Ala. 854; Wallace v. Hall, 19 Ala. 367; Bonner v. Greenlee, 6 Ala. 411; Doe v. Hardy, 52 Ala. 291.

The title of the lairds remaining in the heirs, the appellees, if the personal representatives of the intestate, were entitled to maintain this action. The administration committed to Hunter was committed to him in his capacity of sheriff; in the words of the statute, it was “attached to the office.” The grant of administration to the appellees was made near ten years after the expiration of Hunter’s term of office as sheriff by constitutional limitation. The question is whether, with the expiration of his term of office as sheriff, the grant of administration to him in the capacity of sheriff expired ?

The first statute authorizing the grant of administration to sheriffs or coroners was enacted in 1821, and provided that if, within three months after the death of any person, no one should have qualified as executor or administrator, or if an administration had become vacant, the judge having jurisdiction could commit the administration to the sheriff or coroner of the county, and unless the judge otherwise ordered, no other oath, bond or security was necessary, than the oath of office already taken and the bond already given. The official bond became a security for the performance of the duties and trusts of the administration. — Laws of Ala. 196, § 17. An amendatory act was passed December 24th, 1822, taking effect from and after January 4th, 1823, declaring the statute was to be strictly construed so as to attach the administration to the office of sheriff or coroner, and not to the person.—Laws of Ala. 205, § 15. The administration was subject to be revoked at any time, on the application of the executor, or of any of the kindred or creditors of the decedent, and the executor, or an administrator, permitted to qualify. These statutes remained of force until the Code of 1852 was adopted 'and became operative. —Clay’s Digest, 222, § 10. That Code authorized the appointment of a general administrator in each county, to take charge of the estates of deceased persons, or to act as special administrators in those cases in which the persons entitled would not administer, and no other person was appointed by the court. — Code of 1852, § 1680. It was also provided that, “ in case there is no general administrator, and no other fit person will administer, the court may commit administration to the sheriff or coroner of the county.” It was further provided that, “when the sheriff or coroner is appointed administrator, the administration attaches to the office, and the official oath and bond of such officer are the security for his faithful administration.” These statutes are now embodied in the Code of 1876, forming sections 2362, 2363 and 2372.

The original and the present purpose of these statutes is, to áfroid vacancies in the administration of estates, from which injury would result to creditors, and to legatees or heirs, or the next of kin, having the ultimate and beneficial interest in the assets subject to administration. The existence of an administration under the authority of law and the appropriate tribunal, should not rest in the mere choice or discretion of the executors nominated by the will, or of the next of kin, or of legatees, or of creditors having a preferred right to it; or depend upon the fact that for the administration a fit person applies to the court. Therefore, the statutes have empowered the court to appoint a general administrator for the county, who by the acceptance of the appointment is bound to accept the administration of all estates committed to him; or if such an administrator is not appointed, or has ceased to act, or there is in the particular instance impropriety in his appointment, may devolve the administration upon the sheriff or the coroner, who are bound to its acceptance and the discharge of its duties and trusts, as to the performance of any other duty which may be by law imposed upon him.

The office of sheriff does not owe its origin to legislation, nor derive existence from the common law. For it all our constitutions have made express provision, defining with precision and exactness the duration of the official-term, and, with the exception of a slight change in the present constitution, rendering the sheriff ineligible to serve either as principal or deputy for two successive terms. The duties and the authority of the office are of legislative creation, or drawn from the common law. And of much of the administrative or executive power-belonging to the office at common law the sheriff is divested, not by express legislation, but by the transfer of such power to other offices and officers, or because its exercise would be inconsistent with our institutions. The constitution establishing the office of sheriff, defining precisely the duration of the official term, legislative power may be plenary to prescribe the scope and extent of official duty, but it is incompetent to extend or abridge the term of office as fixed by constitutional limitation. Cooley on Con. Lim. 76, and notes. All statutes prescribing the official duties of sheriffs are to be read and construed in connection with the constitutional limitation of the term of office, and can not admit of a construction, without infringing the constitution, which would extend the duty or authority of the sheriff beyond that term. If it were possible, under the act of 1821, that a grant of administration to a sheriff was capable of a construction that would have extended his duty or authority beyond the constitutional term of office, or of a construction that it was a grant to the individual filling the office of sheriff, and designating him as sheriff was mere deseripUo personae, the legislative intention to avoid and repudiate such construction is clearly manifested by the act of 1822, declaring the act of 1821 was to be strictly construed, not in any and every respect, but i-n a specified and particularized respect, which is clearly expressed — “ so as to attach the administration to the office of sheriff or coroner, and not to the person.” In no other respect, for no other purpose, was the act of 1821 modified, changed or amended. Engrafting upon the act of. 1821 this particular provision, that the grant of administration was .attached to the office of sheriff or coroner, excluding all idea that it was attached to the person, was the whole office and purpose of the act of 1822. The statute was thereby harmonized in words (and all possibility of any other construction excluded) with the constitution and with its policy, prohibiting the sheriff from serving for two successive terms, and this was the legislative intention. The administration, when committed to the sheriff, is an official duty. For the faithful performance of its trusts, the oath of office and the official bond are the security. Now, if authority and duty as administrator were by legislation extended beyond the constitutional term of office, where is the inhibition upon legislative power to extend official authority and duty, as to other statutory duties imposed, or statutory authority conferred, beyond that time? For what length of time can such duty and authority be continued ? Of what value, or, in view of our legislation, how limited in operation is the mandatory provision of the constitution, of' full force when Hunter’s term of office as sheriff commenced and expired, that for two successive terms a sheriff should not serve as principal or deputy?

The legislative intention that the grant of administration should attach to the office, continue with it, and expire with it, seems to us plain, and incapable of any just, reasonable doubt. The history of the statutes, to which we have referred, indicates it clearly. The express declaration that the grant should attach to the office, is the equivalent of a declaration that it shall not survive the office. The grant is the appurtenant of the office, and when by constitutional limitation the term of office expires, there is not in it a capacity to survive that to which it was attached, that of which it was the appurtenant, the mere appendage.

The statute, as embodied in the Code, is changed in phraseology, words are omitted which were found in the former statute ; but there is no indication of -a legislative intent to change or to modify the former statute — certainly not to vary the effect of the administration committed to the sheriff or coroner. No rule of statutory construction rests upon better reasoning than that, in the revision of statutes, alteration of phraseology, the omission or addition of words, will not necessarily change the operation or construction of former statutes. The language of the statute as revised, or the legislative intent to change the former statute, must be clear before it can be pronounced that there is a change of such statute in construction and operation. Sedgwick, Stat. & Con. Law, 428; Goodell v. Jackson, 20 (N. Y.) John. 722; Theriat v. Hart, 2 Hill, 380; Conger v. Barker, 11 Ohio St. 1.

It may well have been supposed by the legislature, that as there was an express declaration the administration should attach to the office of sheriff or coroner, it was not necessary the words of the former statute, “ and not the person,” should be continued. These words were employed originally merely in the abundance of legislative caution. The expression that the “ administration should attach to the office,” of itself, excluded an attachment to the person. We can not doubt that a grant of administration to a sheriff does not endure beyond his official term, that by operation of law it expired with the term. Such was the opinion expressed by the court in Rag-■.land v. Qalhoun, 36 Ala. 606. It may be, the case did not necessarily inquire the question to be decided; but the expression of opinion was positive, was not hasty, and the result, manifestly, of deliberation. The authorities in other States, supposed to reach a different conclusion, to which we have been referred, will be found to depend upon statutory provisions essentially different from our statutes.

It is lastly urged, that though the grant of administration to Hunter may have expired with his term of office, the court of probate could not grant a second administration until there was a revocation of the former grant. This is supposed to be the effect of the statute declaring that “ letters testamentary, or of administration, and letters appointing a special administrator, or to any general administrator, sheriff or coroner, granted by any probate court having jurisdiction, are conclusive evidence of the authority of the person to whom they are granted from the date thereof until the same are revoked,” etc. — Code of 1876, § 2376. By the common law all letters testamentary, or of administration, granted by the tribunal having jurisdiction, and the nature of the administration, whether it be temporary or limited, original or de bonis non, is unimportant, were, within the sovereignty from which they emanated, conclusive evidence of the authority of the person to whom they were granted. — 1 Gfreenl. Ev. § 550. Of course, when revoked, they ceased to exist, and were not evidence for any purpose, unless it was of their former existence. Like many other sections of the Code, this section is merely affirmatory and declaratory of the common law. It is not capable of a construction which would extend the authority of an executor or administrator beyond the time appointed by law for its expiration, if there was not the vain act of entering a judicial declaration of its revocation. Things existing are often subject to revocation. A power to an agent or attorney may be revoked. But if by its own terms the power had expired — if the period appointed for its exercise had terminated, it could not be revoked or recalled. The revocation to which the statute refers' is a revocation in pursuance of other statutes with which it is connected, and all of which are to be construed in pari materia ¡ a revocation of letters of administration, or letters testamentary, which were of force, and which would remain of force, if not revoked. It can have no reference to letters expiring by their own terms, and by operation of law. The administration was vacant when the letters were granted to the appellees; and upon the undisputed facts of the case, their right of recovery is apparent. There was no error in the charge given by the Circuit Court, or in the refusal of the charge requested.

Affirmed.