Blackwell v. Vastbinder , 6 Ala. 218 ( 1844 )

ORMOND, J.

In Taliaferro v. Bassett and others, [3 Ala. Rep. 670,] it was held by this court, that the orphan’s court had no power to cite an administrator to a settlement, unless appointed by the court issuing the citation, and that the jurisdiction of the court must appear upon the record In this case, it might perhaps be inferred, in support of the judgment below, from some parts of the record, that the plaintiff in error derived her appointment from the county court of Washington, .but as the case must be remanded on other grounds, when the petition may be amended, by alledging expressly that such was the fact, we forbear going into this inquiry.

The citation which issued to the administratrix was clearly insufficient to authorize the Judge of the county court to proceed and make a final settlement of the estate in her absence. The citation does not inform her that a final settlement is to be made, and require her to file her accounts and vouchers, but she is required “to make a showing of how, and in what manner, she has administered and disposed of the estate of the deceased,” but for what purpose this scrutiny is demanded, she is not informed.

If this difficulty could be surmounted, all the subsequent proceedings are wholly irregular. It was the duty of the Judge of the county court upon the failure of the administratrix to appear in obedience to the citation, to proceed and state the account, and cause notice to bo given to her, that unless she appeared at the next term of the orphans’ court and filed her accounts and vouchers for settlement, the account so stated would be reported for allowance. [Clay’s Dig. 280, § 48.] Instead of which, the Judge proceeded from the evidence before him, to render final judgment against the administratrix at the return term of the citation.

There is error also, in the judgment, which should have been rendered in favor of the wife as well as the husband.

Let the judgment be reversed, and the cause be remanded for further proceedings.