STONE, J.
In May, 1861, Dr. A. Saltmarsh, a resident of Dallas county, died, leaving a last will and testament, duly executed and attested to pass personal and real property. This will was duly probated in the then probate court of Dallas county, and in July, 1861, letters testamentary were issued by that court to Win. N. Boynton, Eranklin X. Beck, and Mrs. Saltmarsh, the executors and executrix named in the will; and they entered upon the discharge of their duties.
At the June term, 1871, our predecessors, by a majority decision, ruled that the probate of a will, and grant of letters thereon by a probate court of the rebel State government of Alabama, at the time shown above, are to be regarded as the acts of a foreign court; and that such 'executors can not maintain an action in the courts of this State. They further held, that to perform lawful acts of administration, new letters must be sued out, and new security given.—Bibb & Falkner v. Avery, 45 Ala. 691.
The said will of A. Saltmarsh was again, in 1871, proven and admitted to probate in the then probate court of Dallas county ; and in December, 1871, as the bill alleges, “the executors named in said will having failed to qualify, tlie said probate court, on the 30th day of December, 1871, appointed said R. M. Nelson general administrator, with the will annexed, of said estate; . . . who then became, and still is, sole administrator thereof.”
In probating said will a second time, and in the issue of letters of administration to Nelson, the court, so far as the record informs us, took no note of the older proceedings, by which the will was probated, and letters testamentary issued in 1861, but proceeded, on its original, inherent powers, to make whát purports to have been an original grant of letters of administration in chief, with the will annexed. In this the probate court was, doubtless, controlled by the decision of this court in Bibb & Falkner v. Avery, supra.
The present bill, setting forth the facts above, was filed in July, 1872, to recover the unadministered assets of said estate, and to bring Boynton to a settlement of his said administration. The original bill was several times amended. The bill, as amended, was demurred to; and one ground of demurrer was that <(the complainant filed said bill as the administrator, with the ’will annexed, of Alanson Saltmarsh, deceased, and shows pn the face of his said bill that he is [375]*375not the administrator of said estate as claimed.” The demurrer was sustained by the chancellor so far as it affects the legatees under the will; and from that decretal order this appeal is prosecuted.
In the case of Horn v. Lockhart, 17 Wal. 580, the supreme court of the United States laid down rules incompatible with the principles declared in Bibb & Falkner v. Avery, supra. That court said, “the acts of the several States in their individual capacities, and of their different departments. of government, executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial and legislative acts in the insurrectionary States touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution.”
In the case of Texas v. White, 7 Wal. 700, the supreme court of the United States enunciated the same principles, substantially as above declared.
Following the decision in Horn v. Lockhart, supra, this court, in Catterlin, Adm'r, v. Morgan, 50 Ala. 501, decided that “a decree of the probate court, on the final settlement of an administrator’s accounts, rendered in August, 1861, finding a specified sum due to a distributee, and ordering execution therefor, can not be set aside as void on the ground that it was rendered by a rebel court.”
At the same term, in the case of Powell v. Young, this court held that “judicial proceedings had in this State during the recent war, when they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution, are valid and binding.” The same principle was declared in the case of Riddle v. Hill, at the same term, and. in Parks v. Coffey, 52 Ala. 32.
These several decisions, which merit and have our approbation, entirely overturn the authority of Bibb & Falkner v. Avery, supra, and force us to declare that the probate of Dr. Saltmarsh’s will, and qualification of the executors thereof [376]*376in 1861, not only were not judgments and decrees of a foreign court, but, being conservative in their character, they were, and are, in every respect, legal and binding.
In the Revised Code, § 2014, it is declared 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 the same are granted, from the date thereof, until the same are revoked.”
Probate of wills and the grant of letters testamentary or of administration, are in the nature of proceedings in rem. The probate of a will is technically and purely so. It defines and fixes the status of the estate.—2 Smith’s Leading Cases, 593; Deslonde v. Darrington, 29 Ala. 95; 1 Greenl. Ev. § 550. So, in the grant of letters testamentary or of administration, while in some aspects it is a proceeding in personam, nevertheless, in its most important bearing, it is a proceeding in rem. Property must have a living owner. When the owner dies, his title ceases. As to personalty, the title remains undefined and in abeyance, until a personal representative is appointed and qualifies. When that is done, the title of the decedent vests eo instanti in such personal representative. Not by virtue ofconveyance, for there is none. The appointment effects the transfer proprio vigore. The only inquiry in such cases is, had the court jurisdiction ? If so, the title vests in the representative, and can not be devested except by sale, or by some legal proceeding.—Treadwell v. Ramey, 9 Ala. 593; Ramey v. Green, 18 Ala. 774. And under our statutes, a qualified power over and right in the realty vests in the personal representative, as a legal sequence of his appointment. These are attributes of a proceeding in rem. They define and create the status of the decedent’s property-rights.
.. The administration being full, can there be, within the same jurisdiction, another appointment of a personal representative to the same estate ? And if one be made, where does the title remain? It can not be in each, for, to so hold, would give to each the incompatible right to sue, and recover from the other.
Free access — add to your briefcase to read the full text and ask questions with AI
STONE, J.
In May, 1861, Dr. A. Saltmarsh, a resident of Dallas county, died, leaving a last will and testament, duly executed and attested to pass personal and real property. This will was duly probated in the then probate court of Dallas county, and in July, 1861, letters testamentary were issued by that court to Win. N. Boynton, Eranklin X. Beck, and Mrs. Saltmarsh, the executors and executrix named in the will; and they entered upon the discharge of their duties.
At the June term, 1871, our predecessors, by a majority decision, ruled that the probate of a will, and grant of letters thereon by a probate court of the rebel State government of Alabama, at the time shown above, are to be regarded as the acts of a foreign court; and that such 'executors can not maintain an action in the courts of this State. They further held, that to perform lawful acts of administration, new letters must be sued out, and new security given.—Bibb & Falkner v. Avery, 45 Ala. 691.
The said will of A. Saltmarsh was again, in 1871, proven and admitted to probate in the then probate court of Dallas county ; and in December, 1871, as the bill alleges, “the executors named in said will having failed to qualify, tlie said probate court, on the 30th day of December, 1871, appointed said R. M. Nelson general administrator, with the will annexed, of said estate; . . . who then became, and still is, sole administrator thereof.”
In probating said will a second time, and in the issue of letters of administration to Nelson, the court, so far as the record informs us, took no note of the older proceedings, by which the will was probated, and letters testamentary issued in 1861, but proceeded, on its original, inherent powers, to make whát purports to have been an original grant of letters of administration in chief, with the will annexed. In this the probate court was, doubtless, controlled by the decision of this court in Bibb & Falkner v. Avery, supra.
The present bill, setting forth the facts above, was filed in July, 1872, to recover the unadministered assets of said estate, and to bring Boynton to a settlement of his said administration. The original bill was several times amended. The bill, as amended, was demurred to; and one ground of demurrer was that <(the complainant filed said bill as the administrator, with the ’will annexed, of Alanson Saltmarsh, deceased, and shows pn the face of his said bill that he is [375]*375not the administrator of said estate as claimed.” The demurrer was sustained by the chancellor so far as it affects the legatees under the will; and from that decretal order this appeal is prosecuted.
In the case of Horn v. Lockhart, 17 Wal. 580, the supreme court of the United States laid down rules incompatible with the principles declared in Bibb & Falkner v. Avery, supra. That court said, “the acts of the several States in their individual capacities, and of their different departments. of government, executive, judicial, and legislative, during the war, so far as they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution, are, in general, to be treated as valid and binding. The existence of a state of insurrection and war did not loosen the bonds of society, or do away with civil government, or the regular administration of the laws. Order was to be preserved, police regulations maintained, crime prosecuted, property protected, contracts enforced, marriages celebrated, estates settled, and the transfer and descent of property regulated, precisely as in time of peace. No one, that we are aware of, seriously questions the validity of judicial and legislative acts in the insurrectionary States touching these and kindred subjects, when they were not hostile in their purpose or mode of enforcement to the authority of the national government, and did not impair the rights of citizens under the constitution.”
In the case of Texas v. White, 7 Wal. 700, the supreme court of the United States enunciated the same principles, substantially as above declared.
Following the decision in Horn v. Lockhart, supra, this court, in Catterlin, Adm'r, v. Morgan, 50 Ala. 501, decided that “a decree of the probate court, on the final settlement of an administrator’s accounts, rendered in August, 1861, finding a specified sum due to a distributee, and ordering execution therefor, can not be set aside as void on the ground that it was rendered by a rebel court.”
At the same term, in the case of Powell v. Young, this court held that “judicial proceedings had in this State during the recent war, when they did not impair, or tend to impair, the supremacy of the national authority, or the just rights of citizens under the constitution, are valid and binding.” The same principle was declared in the case of Riddle v. Hill, at the same term, and. in Parks v. Coffey, 52 Ala. 32.
These several decisions, which merit and have our approbation, entirely overturn the authority of Bibb & Falkner v. Avery, supra, and force us to declare that the probate of Dr. Saltmarsh’s will, and qualification of the executors thereof [376]*376in 1861, not only were not judgments and decrees of a foreign court, but, being conservative in their character, they were, and are, in every respect, legal and binding.
In the Revised Code, § 2014, it is declared 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 the same are granted, from the date thereof, until the same are revoked.”
Probate of wills and the grant of letters testamentary or of administration, are in the nature of proceedings in rem. The probate of a will is technically and purely so. It defines and fixes the status of the estate.—2 Smith’s Leading Cases, 593; Deslonde v. Darrington, 29 Ala. 95; 1 Greenl. Ev. § 550. So, in the grant of letters testamentary or of administration, while in some aspects it is a proceeding in personam, nevertheless, in its most important bearing, it is a proceeding in rem. Property must have a living owner. When the owner dies, his title ceases. As to personalty, the title remains undefined and in abeyance, until a personal representative is appointed and qualifies. When that is done, the title of the decedent vests eo instanti in such personal representative. Not by virtue ofconveyance, for there is none. The appointment effects the transfer proprio vigore. The only inquiry in such cases is, had the court jurisdiction ? If so, the title vests in the representative, and can not be devested except by sale, or by some legal proceeding.—Treadwell v. Ramey, 9 Ala. 593; Ramey v. Green, 18 Ala. 774. And under our statutes, a qualified power over and right in the realty vests in the personal representative, as a legal sequence of his appointment. These are attributes of a proceeding in rem. They define and create the status of the decedent’s property-rights.
.. The administration being full, can there be, within the same jurisdiction, another appointment of a personal representative to the same estate ? And if one be made, where does the title remain? It can not be in each, for, to so hold, would give to each the incompatible right to sue, and recover from the other. It can not be in the two jointly, for reasons too obvious to require statement. One title must be paramount to the other. Which is it ? It would seem to result, necessarily, from the principles stated above, that the title to the property of a decedent, and the right to sue, are in the person first appointed by a court having competent jurisdiction in the premises. In the ease of Matthews v. Douthit, 27 Ala. 273, the record showed the appointment of an ad[377]*377ministrator de bonis non, who cited the administratrix in chief to a settlement. This court held that the administratrix in chief had never duly resigned or been removed; but that she was still administratrix. The court further held that the appointment of the administrator de bonis non was, for the reasons above stated, void; and that he thereby acquired no rights as administrator.
In Gray v. Cruise, 36 Ala. 557, the same doctrine was affirmed.—See, also, Mosely v. Mastin, 37 Ala. 216.
The case of Coltart v. Allen, 40 Ala. 155, was a very strong case. The first administration in that case was revocable and voidable. Still, this court held that because the second appointment was made without revoking the first, it was absolutely void.—See, also, Pettigru v. Ferguson, 6 Rich. Eq. 378.
We have said above that the grant of administration is in the nature of a proceeding in rem. — See, also, 1 Williams on Exec. 476. The result is to fix the legal title, to the extent above stated, in the personal representative. He holds it, hot in his own right, but in trust for others. So far as he is personally concerned, he may, by his own acts of maladministration, estop himself, in certain cases, from asserting title to property which is the subject of such mal-administration. — See authorities collected in Hopper v. Steele, 18 Ala. 831. But such estoppel does not operate a bar to the claims of the estate. That remains unaffected by such personal estoppel. We do not think any or all' of the grounds relied on, operate a change of the person of the administrator, or transfer the' trust from Mr. Boynton to Mr. Nelson. The judicial proceedings relied on, as constituting an estoppel, were all instituted after Mr. Nelson claims to have been appointed, and after the present suit was instituted. The first was a petition by creditors of Dr. Saltmarsh, to have Mr. Boynton give a new bond, on the alleged ground that his sureties had become insufficient. To this extent that court had jurisdiction. The amended petition brought Mr. Nelson before the. court, and prayed the judgment of that court, whether Boynton or Nelson was the administrator. The court dismissed the petition, thus refusing to require Boynton to give a new bond. He had power and jurisdiction to make this order. He had no power, in that proceeding, to determine authoritatively, whether Boynton or Nelson was the administrator. The reasons he gave for his opinion, while justified by Bibb & Falkner v. Avery, were, nevertheless, unsound, and, as a decree, they were coram non ■judice.
In the case of Nelson v. Plattenburg and Boynton, the re-[378]*378suit of the decree was to estop Boynton, so far as that claim is concerned, from disputing Nelson’s right to that fund. We are not prepared to , say the estoppel can be construed as extending any farther than as it affected that claim. Certainly it does not estop the beneficiaries under the will. A claim of administration, otherwise void, can not be legalized and made valid by any mispleading of the rightful executor, or by an acquiesence by him in an erroneous decree of the chancellor.
We had hoped we would be able to find some solution of the very anomalous case presented by this record, which would tend to disentangle the complicated web in which the unfortunate case of Bibb & Falkner v. Avery has involved it. We have not been able to do so. We indulge the hope, however, that in the future adjustment of the rights involved in this, and kindred litigation connected with this estate, a liberal system of concessions will mitigate the consequences which must always result from a decree of nullity pronounced on solemn judicial proceedings. Administrators, who act in good faith, are entitled to indulgent consideration.—See Gould v. Hayes, 19 Ala. 438; Henderson v. Simmons, 33 Ala. 291. Liabilities assumed and judicial action invoked under the express sanction and decree of this, the highest judicial authority in the State, certainly present as strong a claim to generous forbearance as any which can easily be conceived.
There' is no error in the record prejudicial to appellant, and the decree of the chancellor is affirmed.