Carver v. Hallett , 26 Ala. 722 ( 1855 )

G-OLDTHWAITE, J.

—If the order of allowance had been put in the shape of a judgment, against the estate,' or against the co-executor, we should then have had great doubt whether it would serve as a foundation for a suit at law, which must rest upon a legal demand. We incline to the opinion, that an order of such a character is so connected with the administration, that it could be enforced only through the medium of the court which controlled the estate ; but it is unnecessary, in the present case, to go so far, as the order of the Probate .Court, on which it was based, was simply one which ascertained the amount to be allowed to the executor as compensation for his services. There was no judgment against the co-executor — no direction even that he .should pay it; and it therefore creates no legal liability as against Mm. As a judgment, it was .void.—Hughes v. Mitchell, 19 Ala. 268. If Walker had not the funds in his hands to pay it, the Probate Court, by virtue of its general powers over the estate, might have directed it to be paid by the other executor, and enforced the payment by attachment; but the order, in the shape in which it is, creates no demand which can be. enforced in a court of law against him.

As the order would not have authorized the party in whose-favor it was made to recover upon it, his assignee stands in no better situation ; and in‘rendering- judgment for the defendant, in a suit where the evidence showed that the plaintiff had not the right to recover upon any siate of the pleadings, there was no error.

Judgment affirmed.