Watson v. Collins' Adm'r , 37 Ala. 587 ( 1861 )

R. W. WALKER, J.

—[1. 2.J In The-margin-of the complaint, the plaintiff is'styled “administrator'of the estate of William Collins, deceased;”'' This, by itself, would be mere descriptiopersonen ; but'the complaint alleges, that the sum sued for will, when collected, be assets of the estate of William Collins, deceased] which is sufficient to show that the suit is brought by the plaintiff in his representative character. — See Harris v. Plant, 31 Ala. 639 ; Arrington v. Hair, 19 Ala. 243 ; Tate v. Shackleford, 24 Ala. 210. Hence, a-plea, alleging facts'which show that the plaintiff’s letters of administration are void, for want of jurisdiction-in the court'by which they were issued, would be a good plea in birr. — Miller v. Jones, 26 Ala. 247.

[3.] But we domot think that the ¡alea filed by the defendant does this. • Under our laws,- it is only when the intestate resided out of the State at the time of his death, that the existence of assets in-the State is necessary to give the court jurisdiction. Consequently,- the non-existence of assets in the State would not make an administration void, if the intestate was an inhabitant of the county at the time of his death. — Code, § 1667. Nor do we think that an administration de bonis non, granted by the probate court of the county in which the intestate had his domicile at the time of his death, would be void for want of unadministered assets, although it might be irregular and revocable. — Code, § 1720.

£4-53 Neither does the plea show that the court (had no jurisdiction to order the sale. The prior descent‘'of- the land to the heirs, the payment of the debts, -and the distribution of the personalty by the administrator in--chief,» would not render void an order of sale for- divisions obtained, by a legally appointed administrator de-benis non, although they might constitute a good 'ground - of- objection, in the probate court, to the granting-" of the -order. And if the court had jurisdiction to order the- sale, a defect in the title-is no defense to a suit for the- purchase-money.— Lemkin v. Reese, 7 Ala. 179 ; Worthington v. McRoberts, ib. 814; S. C., 9 Ala. 297; Jennings v. Jenkins, 9 Ala. 288; Pool v. Hodnett, 18 Ala. 752; Burns v. Hamilton, 33 Ala. 210.

Judgment affirmed.'.