Johnston v. Fort , 30 Ala. 78 ( 1857 )

STONE, J.

Tbe present was not a case of tbe final settlement of an estate, but a proceeding to obtain a distributive interest while tbe administration was in progress. Tbe right of a legatee or distributee to proceed in tbe probate court, for tbe recovery, after eighteen months, of a legacy or distributive share, is purely statutory. To justify tbe action of tbe court in such cases, tbe petition and proceedings must substantially conform to tbe statute. Gunn v. Howell, 27 Ala. 663. We first propose to inquire, bad tbe court jurisdiction in this case ? If tbe jurisdiction of tbe court cannot be upheld on one of tbe two following sections, tbe whole proceeding is without warrant in tbe law — is coram non judice, and void.

“Section 1772. After tbe expiration of eighteen months from tbe grant of letters testamentary, or of administration with tbe will annexed, if there are more than sufficient assets in tbe bands of such executor or administrator to pay tbe debts of tbe deceased, any legatee may apply to tbe probate court of tbe county in which letters were granted, to compel tbe payment of such legacy.”

“Section 1778. Tbe court may, also, in cases of intestacy, make an order of distribution out of tbe assets of tbe deceased, on tbe application of any person entitled to distribution, after -eighteen months from tbe grant of letters.”

Tbe case made by this petition is not within either of tbe sections above copied. Tbe intestate of tbe petitioner was not a legatee, applying for a legacy. Hence tbe case is not within tbe provisions of section 1772. This estate is not a ease of intestacy, and it is therefore not within tbe provisions of section 1778.

Sections 1776 and 1782 prohibit tbe making of an order for distribution, or tbe payment of a legacy, under tbe sections of tbe Code above copied, unless tbe applicant give a refunding bond. Tbe record in this case does not inform us that any rebinding bond was given, or required. This was an error in the probate court. — Rowland v. Day, 17 Ala. 682; Erwin v. Ferguson, 5 Ala. 167.

Eor tlie errors above pointed out, we would reverse tbis cause, if tbe appeal were properly before us. Such, however, is not the case. There has been no final decree rendered, which can authorize an appeal, either under section 3016 of the Code, or subdivision 5 of section 1888. The only authority for an appeal, from an order such as was made in this case, is subdivision 4 of section 1888. That gives a right of appeal to a “legatee, or person entitled to distribution,” but not to the executor or administrator. — See Devany v. Devany, 25 Ala. 722.

As the statute (Code, § 1888) expressly prohibits the right of appeal by the executor or administrator in cases like the present, the joinder in error by the appellee does not cure the defect. Consent cannot give jurisdiction over subject-matter. — Lee v. Thompson, 28 Ala. 453.

We will not say the administrator is without remedy. It is not for us, in advance, to determine what that remedy is. See, however, Ex parte Tarleton, 2 Ala. 35; Comm’rs’ Court v. Thompson, 18 Ala. 694; Court v. Tarver, 25 Ala. 480; Ex parte Russell, 29 Ala. 717.

The appeal is dismissed, at the costs of the appellant.