Treadwell v. Rainey , 9 Ala. 590 ( 1846 )

ORMOND, J.

This was an application to tbe Orphans* Court of Benton county, for letters of administration cum testamento annexo of William Fagan, deceased. It appears that the executrix of the will qualified in the State of Georgia, where the testator died, and where the will was admitted to probate, and in virtue thereof took possession of the property bequeathed by the will, in which she had a life estate, and which consisting of slaves, has been brought to this State. It is very clear that the court had no power to grant the application Independent of the fact, that the executrix had a life estate in the slaves, in virtue of her qualification under the will, she took the legal title-, in the slaves. Although it be a trust estate, she is the legal owner of the slaves, and might maintain an action for them in this State, in her own name, without taking out letters of administration. [Commonwealth v. Griffith, 2 Pick. 11; Slack v. Wolcott, 3 Mason, 508; Story on Con. of L. 432, sec. 516.

This is a conclusive to show that administration cannot be taken out upon this property. If the slaves had been in this State, at the time of the death of the testator, or if administration had not been had upon the estate in Georgia, the question would have been entirely different, as there can be no doubt that administration may be taken out upon the property of the deceased, situate in different States. [Orcutt v. Orms, 3 Paige, 259; Currie v. Bircham, 1 D. & R. 35.] It is the fact, that the deceased had property within the county, which gives the court jurisdiction. This was not the property of the deceased, but of the executrix.

It appears that the executrix is herself consenting to this procedure, and that she has produced the will which has been recorded in the Orphans’ Court of Benton, and that before the production of the will, administration had been granted upon the slaves, to the defendant in error, by her consent. The consent of the executrix could not confer jurisdiction on the court, nor can the illegal appointment of Rainey sanction the present application. It is to be observed that this application is not made on behalf of creditors, nor if it was would the case be varied, though the executrix having brought the property, or permitted it to be brought here, might be subject to an action at the suit of the creditors of the deceased as executor de son tort. [Densley v. Edwards, 5 Ala. 31.]

The conclusion we have arrived at, dispenses with the necessity of an examination of the petition to the judge of the Circuit Court for a mandamus. Conceding it to be regular, it was properly refused.

Judgment affirmed.