Moseley's Adm'r v. Mastin , 37 Ala. 216 ( 1861 )

A. J. WALKER, C. J.

AThe grant,of .administration to ¡the appellant was not void, on account of the omission of ,a recital of the facts upon which the jurisdiction of the court was predicated. — Ikelheimer v. Chapman, 32 Ala. 676; Savage v. Benham, 17 Ala. 119. As there had been a previous administration upon the estate, which was terminated by the administrator’s death, there could not be an administration in chief, and it was improper for the court to appoint an administrator generally. The appointment should have been in-terms restricted to the character of an administrator de bonis non. But wo-do not think the appointment ought therefore-to have been held void in toto. The authority of an administrator d'e home non is precisely that of an administrator an chief, lessened-in consequence of the previous administration ; -and -the- -errar ef the court, in omitting to properly qualify the grant of administration, had only the effect of conveying an excess of power ; and the grant of-'¡adm¡knstrat'ien should be held void only for the excess- of •'authority. A consideration of the appointment, -in connection with the previous administration, shown by -the records of -the court, qualifies-it, and gives it the character of on administration de-bonis non. The plaintiff was, therefore, properly described as administrator de bonis non; tmd the apparent- .variance -between the character in -, which he--sues, and--that bestowed by-the grant of administration,-is-harmonized and reconciled by the' facts, that there had been a previous administration, which was terminated by death. — See Steene v. Bennat & Sergeant, 34 Verm. 303 ; and Grand v. Herrera, 15 Texas, 533, which seem to be precisely i-n point, sustaining the foregoing views.

'Note ijy Reporter. — The appellee’s counsel afterwards ^ubmitte'd a'-petition for a rehearing, in which they urged UP affirmance of the judgmeut-of’the circuit-court, on'tho following grounds : 'l..As the-plaintiff never hiid possession-of the slaves, he cannot recover-in his -irfdividual 'character.— George ~v. English, 80 Ala. 583. Looking to the body of the conn-plaint, the only words descriptive of. his representative character are, “as aclm’r of all ttie goods-and chattels,” &c., “left unadministered by the administrator in chief; and since nothing is averred to, excuse theprofert and proof, of bis representative character,,{Worthington v.,MeB,oberts-,. 7 Ala. 814,) and the defendant is not estopped from, denying it, (Harbin v. Levi ', 6> Ala.. 399;), this court will not presume, against the judgment of the circuit court, that these words indicate a suit by him. as administrator. — Chapman v. Spence, 22i Ala.,588. No intendments are to be made in favor of the' pleader, and against the correctness of the judgment.^-Nroy v Griffin, 6 Ala. 387 ;i Agee v. Williams, 27 Ala. 644;; S. C., 30 Ala. 036 ;; George v.. English, ,30 Ala. 5S3.

.¡Judgment reversed, and cause remanded.

2. But, if the action is brought by the plaintiffl'in-his representative character, the order' of the probate court was properlyexcluded. A grant of letters of- administra*tion on the estate of “Elisha Moseley, deceased,”’without any other addition, or description, of the person; when it is', shown that there were- two deceased persons, father and! «on, each bearing that name, and each leaving an estate in, the county, nrnst be construed and held as a grant of administration on the estate of the father.-, — Wilson o. Stubs, Hobart, 330Tjepiot o. Browne, 1 Salkeld, 7, pi. 16 ; Sweet— ing v. Fowler, 1 Starkie, 106 ; Boyden v..Hastings, 17 Pick. '200. The construction., of the order, of the probate court was a question for the determination of the court, and' with which the jury had nothing to do. — Wyatt v. Steele, 26 Ala. 639 ; Bishop v., Hampton, 15 Ala. 761 ; S. C., 1,9 Ala. 792. Parol evidence was-not admissible to change the legal effect of the grant; by showing that it was intended to refer to the estate of tire son;-, — Hudson v. Gayle, 1-iO-, Ala. 116 ; Flóurnoy o: Mims, 17 Ala. 36 ; Ware v. Boberson, 18 Ala.. 105. No such evidence was offered by plaintiff, evemif it were admissible ; and this court will not presume, forrthe purpose of reversing the judgment, that the plaintiff could have made the necessary proof.

In response to ’this application, the following opinion was, on a subsequent cla'y of the tom, delivered :

A. J. WALKER, C. J.

As to the first point made in the petition for a rehearing, we have only to say, that the court must judicially take notice of such abbreviations as “ adm’r,” or acknowledge itself incompetent to understand the commonest writings.

After a careful consideration of the -second point made, and the authorities adduced in support of it, we «cannot find in it a reason for 'ohapging the conclusion which we have heretofore announced. The authorities cited by the counsel show, as we think, most clearly, that if the administration would, under the circumstances stated, -be deemed prima facie an administration upon the estate of the senior Moseley, it may nevertheless be shown -to have been in fact an administration on the estate of the junior Moseley-.

Two specific objections were made to the plaintiff’s testimony in the court below, one of which implied an admission that the administration was upon the estate of the junior Moseley ; and the bill of exceptions states, that the court sustained the objections, and excluded the evidence. The objection -to the evidence stated in the second point of .the petition for .a rehearing, was not one of the objections' made in the court below, but is now brought forward for the first time. If that objection had not been excluded from the attention of the plaintiff’s counsel, and of the -court, by the other specific objections which were made, it .might have been obviated. The court erred in sustaining the specific objections which were made ; and we cannot affirm that it was error without injury, because there was another objection which might have been made, and which, if made, might have been obviated. It is our duty, therefore, to reverse, notwithstanding there may have been another objection, which might have been fatal to the admissibility of the evidence, but which was of such a nature that, if it had been made in the court below, it was capable of being obviated.

It must be admitted, that the exclusion of illegal evidence, for a wrong reason, would not be a reversible error. Jordan v. Owen, 27 Ala. 152. But it would be improper for the court to assume that the excluded evidence was illegal. Although it may have been, prima facie, illegal, yet, in connection with over evidence, it might have been made legal. We cannot presume that the other evidence which was necessary, in connection with that excluded, to make out the plaintiff’s right to sue in the capacity of administrator, would not have been offered, when both the motion to exclude, and the order excluding, were expressly pqt upon other grounds than the want of such evidence, and one of those grounds implied an admission that the evidence was not obnoxious to the objection now made.

The petition for a rehearing is overruled.