Dunham v. Hatcher , 31 Ala. 483 ( 1858 )

BIOE, O. J.

— Prom the bill of exceptions, as well as from other parts of the record, it appears that Robert L. Hatcher and John A. Lodor regarded themselves as the testamentary guardians of Texana Dunham and Willie P. Dunham, simply because they were the administrators de bonis non, cum testamento annexo, of William P. Dunham, deceased; and that for the same reason, and no other, the probate court of Dallas county treated the said Hatcher and Lodor as such guardians. The bill of exceptions clearly shows, that said Hatcher and Lodor never gave .bond as such guardians, but acted in that capacity “merely by their appointment as administrators of said William P. Dunham.”

The mere appointment of two persons as administrators de bonis non, cum testamento annexo, of a deceased father, cannot in any case, in this State, authorize them to act as testamentary guardians of his minor children, nor give to the probate court making such appointment jurisdiction, by final decree or otherwise, to treat them as testamentary guardians, or to settle their accounts as such guardians. That court is one of special and limited jurisdiction, as to the settletíient of the accounts of persons acting as guardians. In other words, it has no jurisdiction to settle the accounts of guardians appointed by some other probate court, nor of persons whose pretensions or claims to the character or capacity of guardians for certain minor children, rest upon the sole ground that they have been appointed administrators de bonis non, cum testamento annexo, of the deceased father of those children. As the probate court is, in this respect, a court of special and limited jurisdiction, consent cannot give it jurisdiction, where the record not only, fails to show every thing necessary to confer jurisdiction, but actually shows the non-existence of one or more of the jurisdictional facts. Upon the case as presented by the bill of exceptions now before us, we decide, that Hatcher and Lodor were not the testamentary guardians of Texana and "Willie P. Dunham ; that the-probate court of Dallas county had no jurisdiction to settle their accounts as such guardians; and that the decree of that court, which purports to fully close and finally settle their guardianship and accounts as guardians, is void, and must be reversed. — Taliaferro v. Bassett, 8 Ala. R. 670; Clay’s Digest, 221, § 3; ib. 269, §§ 10-13; Code, §§ 2015, 2018; Eslava v. Lepetre, 21 Ala. R. 504.

2. We are urged to revise the action of the probate court of Dallas, upon the final settlement of the accounts of said Hatcher and Lodor as administrators de bonis non of William P. Dunham. Wo cannot do that; because the appeal is not taken from the decree which settles their accounts in their capacity or character of administrators merely, but from the decree which purports to settle their accounts in their character of guardians. One appeal could not bring up both decrees for revision. The parties to those decrees are not the same, in 'this, that Mrs. Sarah Dunham, now the wife of E. M. Blackwell, is interested in the decree as to the mere administration, but not in the decree as to the guardianship. — Shearer v. Boyd, 10 Ala. R. 279; Boyett v. Kerr, 7 ib. 9.

It is upon the ground that the appeal is from the decree as to the guardianship only, that we overrule the motion to dismiss it. Under our former decisions, we deem it clear that the appeal is from that decree, and well taken. — Williams v. McConico, 27 Ala. R. 572; Satterwhite v. The State, 28 Ala. R. 65.

3. We have avoided the consideration of the will of William P. Dunham, for two reasons: 1st, because we are compelled to reverse the decree appealed from, for want ot jurisdiction of the probate court to render it; 2d, because, if we had not reversed for- this want of jurisdiction, the will was not made part of the bill of exceptions, and therefore could not have been considered by us, inasmuch as the Code requires us to try such cases (when the probate court has jurisdiction to render the decree appealed from) on the bill of exceptions. — Code, §§ 1891, 2039; Turner and Wife v. Dawson, at last term.

Whether the will does’ not create or declare trusts which are not within the jurisdiction of the probate court, we cannot properly decide upon the present record. — See Billingsley v. Harris, 17 Ala. R. 214, and cases there cited; Gerald v. Bunkley, ib. 170; Wilson v. Knight, 18 ib. 129; Weems v. Bryan, 21 ib. 302.

The decree appealed from is reversed, and annulled for want of jurisdiction in the probate court to render it. And unless it is suggested by the appellees or their counsel, that the objection for want of jurisdiction, which we have above sustained, can probably be obviated in the event the cause is remanded, the cause will not be remanded. If that suggestion is made, the cause will be remanded.

The appellees must pay the costs of this court.