McDougald's Adm'r v. Carey , 38 Ala. 320 ( 1862 )

A. J. WALKER, C. J.

The appellee obtained a decree in the ehancery court. The appellant, being ¡.defendant therein, appealed. Afterwards, the -appellee died. The appellee was only interested as a trustee. The question is now presented, in whose name shall the appeal be revived. Section 1323 of the Code provides, that upon the death of a sole or surviving trustee of an express trust, the trust estate does not descend to the heirs, or pass to his personal representatives. Under this law, it is very clear that a trust, created and subsisting in this State, would not pass, on the death of the trustee, to the heir or personal representative of the deceased trustee, however the rule may have been at common law. — Maulden, Montague & Co. v. Armistead, 14 Ala. 702.

But, in fact, the trust here was created in Georgia ; and the suit was instituted for the purpose of collecting a debt due the trust, out of an alleged debtor’s assets in the State of Alabama. These facts can not change the aspect of the question. The common law is presumed to prevail iu Georgia; and by the common law, the trust title, as to personalty, passes upon the death of the trustee to his personal representative. — Maulden, Montague & Co. v. Armistead, supra; Powell v. Knox, 16 Ala. 364 ; Hill on Trustees, 303; Lewin on Trusts, 260, 279. Presuming the common law to prevail in Georgia, we must intend that the title to the personalty in that State, belonging to the trust, passed to the personal representative of the trustee. .

The personal representative, appointed in Georgia, could, however, exercise no authority beyond the jurisdiction iu which he was appointed, and would, therefore, have no ■authority, - by virtue of his appointment in Georgia, to maintain a suit for the purpose of enforcing the payment of a debt due to the trust out of assets of the debtor in the-State of Alabama. — Harrison v. Mahorner, 14 Ala. 829 It would, therefore, • be necessary, in the absence of our statute, that :an administration should be taken out in this State, in order .that a proper party might be substituted lor the deceased-trustee. As, however, our statute does not permit tlm-succession of an administrator to the title of the trustee, it'is indispensable, that a trustee should be appointed in; this State, as the successor of the deceased trustee ; and the trustee so appointed is the proper party, against whom-.the appeal should be revived, in-lieu of the deceased appellee. It is our duty to exercise a “general superintendence and control of inferior jurisdictions.” This we can not do in this case without making the successor of the deceased trustee a party. We therefore decide, that a revivor against the successor when appointed shall he had, and that for that purpose a scire facias may issue. — Jordan v. Abercrombie & Thompson, 15 Ala. 580.

We are requested by the appellant to decide, whether it is competent for him to apply to the court of proper jurisdiction for the appointment of a trustee. This question we do not suppose it is important for us to decide. We presume, that now, , when it is definitely settled that the proper party is a successor of tbe deceased trustee appointed by tbe proper tribunal in this State, those who are beneficially interested in the trust will take steps to have such trustee appointed fey the next term of this court. If they should, however, faü to do so before the next term of the court, we will then consider what further order it may foe necessary for us to make.

The motion to dismiss the appeal is overruled, and further time is allowed to the appellants within which to revive the appeal.