Clemens v. Walker , 40 Ala. 189 ( 1866 )

BYRD, -J.

The appellees move to dismiss the appeal, on the ground that thé law does not authorize an appeal in such proceeding, and from such an order, as this record shows. The motion must be overruled, under the provisions of the act approved December 12th, 1857, (Pamph. Acts, p. 244,) and upon the authority of the cases of Curtis v. Williams, 33 Ala. 571, and Curtis v. Burt, 34 Ala. 729. These cases are almost identical with this one, as respects the question of appeal. It is true, the question was not made in those cases; but, as this court took jurisdiction, they must be taken as conclusive as to the proper construction of the act of 1857.

2. This was a proceeding in the probate court, to revoke the letters of special administration granted by that court to appellees on the 28th day of October, 1865, for certain reasons set out in the petition filed and sworn to by appellant on the 2d day of April, 1866. The appellees, in their answer to the petition, interposed a demurrer thereto; but, upon the trial, the appellees seem to have limited their demurrer to all the allegations of the petition, except those contained in paragraphs No. 5 and 6, and the first specification under allegations in paragraph 9. The appellant objected to appellees being allowed to demur to only part of the petition ; but the court overruled the objection, and the appellant excepted. — Kirksey v. Fike, 29 Ala. 206. The court sustained the demurrer, and the appellant excepted; and this is the only remaining question raised by the bill of exceptions and the argument of counsel. And the main question, and the only one of any merit, presented by the petition and demurrer, is, whether the probate court had jurisdiction to grant special letters of administration to appellees, after the probate of tbe will of tbe testator, and grant of letters' of administration with the will annexed, and tbe termination of tbe administration in chief by tbe death of tbe administrator.

The petition does not show what was tbe character or kind of special administration granted or conferred by tbe letters issued to appellees by tbe probate court; and in tbe absence of any averment, we are left to conjecture; and, in order to sustain tbe ruling of tbe court below, must presume that tbe court granted such an one as it was competent to grant. Bouvief says, administrators are general or special: general are of two kinds; “first, when tbe grant of administration -is unlimited, and tbe administrator is required to administer tbe whole estate under tbe intestate laws ; secondly, when tbe grant is made with tbe annexation of tbe will, which is tbe guide to tbe administrator to administer and distribute tbe estate.” Special administrators are of two kinds: “first, when tbe administration is limited to part of tbe estate; as, for example, when tbe former administrator bad died, leaving a part of tbe estate unadministered, an administrator is appointed to 'administer! tbe remainder, and be is called tbe administrator de boniú non. He has all tbe powers of a common administrator. When an executor dies, leaving a part of tbe estate unadministered, tbe administrator appointed to complete tbe execution of tbe will is called an administrator de bonis non cum testamento annexo. Secondly, when tbe authority of tbe administrator is limited as to time as, administrators durante minore cetaie, durante absentia, and pendente lite.

Upon tbe death of tbe general administrator, tbe court bad tbe power to appoint a special administrator de bonis non, cum testamento annexo; and bow are we to determine that tbe appellees are not so appointed, from tbe allegations of tbe petition? Tbe words “special administration,” used therein, do not negative tbe presumption that they were so appointed. They are altogether consistent therewith. Tbe language of tbe 7th allegation does not clearly negative such a presumption. But, supposing it does, then what kind of “ special administration” was granted appellees, and for wbat reason was it granted ? Tbe petition does not affirm tbe existence of tbe facts wbicb would bave authorized tbe appointment of an administrator pendente lite. But tbe probate court being one of general jurisdiction, tbis court, on sucb a petition as this, will presume that tbe court below bad sufficient proof to authorize it to grant special administration to tbe appellees, — 1 Pet. Abr. 253; Price v. Parker, 1 Lev. 157; Ikelheimer v. Chapman, 32 Ala. 680; Moseley's Adm’r v. Mastin, 37 Ala. 216; Sims v. Boynton, 32 Ala. 553; Bradley v. Broughton, 34 Ala. 705.

3. If, after tbe death of a general administrator, who has not fully administered tbe estate, there should be a contest between persons claiming tbe right to administer upon the unadministered assets, tbe court has tbe power to appoint an administrator pendente lite.— Walker v. Dougherty, 14 Geo. 653; Dean v. Biggers, 27 Geo. 74; Slade v. Washburn, 3 Iredell’s Law, 560; Springs v. Erwin, 6 Iredell’s Law, 27; Pratt v. Kittrell, 4 Dev. Law. 171; Ball v. Oliver, 2 Ves. & Bea. 96; Goods of John Morgan, 9 Eng. Law & Eq. 581; Jordan v. Polk, 1 Sneed, 432; I Lomax Ex’rs, 305; Watson v. Bothwell, 11 Ala. 654; Robinson v. Robinson, 11 Ala. 952.

Tbe case cited from 14 Geo. E. loses something of its weight, by tbe manner in wbicb tbe learned court aids tbe “oversight of tbe counsel ” and tbe bill of exceptions; yet, it decides upon a’ statute not clearer or more comprehensive than section 1676 of tbe Code, a question almost identical with tbe one involved in the decision of tbis cause, except that, in tbe Georgia case, tbe doctrine of presumptions is carried much farther then we are willing to go in order to aid a bill of exceptions or tbe ruling of tbe court below.

Section 1676 confers on tbe probate court tbe power, in . certain cases, “or in'any other case in-which it is necessary” to appoint “ a special administrator.” Tbis seems to be clear and explicit; and tbe cases cited from 11 Ala. E. very suggestively indicate that tbis power is sufficient to meet • every contingency that may arise in tbe course of tbe administration of an estate, and so as to avoid tbe necessity of seeking tbe assistance of a court of chancery in many cases, where, heretofore, tbe probate court was madequate, on account of its want of power to appoint a special administrator, to preserve and protect the estate from waste.

These .special administrations, “ limited as to time,” should not continue a moment longer than the necessity exists which brought them into being; and the probate court should see to it, that they are not used to the delay and injury of creditors, to unnecessarily increase the costs of administration, or as impediments to legatees and distributees obtaining their just rights.

In this case, if the appellees are not administrators de bonis non with the will annexed, it would seem that it would be to the interest of the creditors of the estate, if any, and to the proper conducting of the litigation pending as to the validity of the will of James Clemens, deceased, now on record, and its probate, that there should be such appointed immediately. Administrators 'pendente lite are not proper parties to such litigation; and after the probate of a will, and its admission to record, it would seem more in conformity to principle that some one who represented the legal title conferred by the will to the property should be made a party to the litigation. These remarks are based upon the defense set up in the first paragraph of the answer of the appellee, and with a view to preparing the way to a termination of the protracted litigation which is involving this estate in heavy costs, and the legatees and distributees, if not also creditors, in an almost helpless pursuit of their just dues and rights.

In the case of Slade v. Washburne, supra, Judge Gaston, in delivering the opinion of the court, makes some very pertinent and forcible remarks, as to the difficulty courts have frequently to encounter, in the interpretation of the entrie’s and records of these courts of probate, which exercise so important a jurisdiction in our country. The record neither shows that there was any necessity for such grant of letters of special administration, limited as to time, to appellees, nor that there was no necessity for such grant. The court had no power to make an appointment of a special administrator after the probate of a will and a grant of letters of administration with the will annexed, unless there was some necessity shown therefor; and in some cases this necessity should be shown by the record, otherwise the grant might be voidable, if not void. But, however this maybe, the petition in this case failing to set out the order of the appointment of appellees, we must presume that the record is unassailable.

Note by Reporter. — The appellant’s counsel filed a petition for rehearing, and submitted with it the annexed brief; in response to which application, the following opinion was afterwards delivered. Geo. W. Stone, and J. W. Shepherd, for the appellant.

The assertion of Bouvier, that an administrator de bonis non is a special administrator, on the authority of which the opinion of the court is mainly rested, is supported by citing Bacon’s Abr., Swinburn, Rolle’s Abr., and 6 Sm. & Mar. These elementary writers simply state the principle as Bouvier states it. The case in 6 Sm. & Mar. merely decides, that the powers of an administrator de bonis non do not extend to the assets previously administered by the administrator in chief. The precise question was, whether an administrator de bonis non could recover from an administrator in chief, a balance found in his hands at the cessation of his authority. It was ruled that he could not. That was correct. The same rule obtained in this State, before our statute enlarged the powers of an administrator de bonis non, and authorized him to recover from his predecessor the assets received by bim, and not accounted for. Sess. Acts 1857-8, page 58.

The case of Clemens v. Wilson, from the circuit court of Madison county, was submitted with this case, and argued on the same brief by appellants’ counsel; and some of the remarks of this opinion are more applicable to.that case than this, and will shorten the opinion in that case; but the record in that cannot supply the defects of this, if any. Both cases arise from litigation in the administration of the estate of James Olemens, deceased. The case of Walker v. Dougherty, supra, might seem to warrant us in looking at both records, in such a case, to aid us in coming to a conclusion upon each case; but this we cannot do.

The judgment of the probate court must be affirmed.

Now, in wbat sense did Bouvier, and tbe other elementary authorities, employ the word special ? Special, that is, limited, in this, there was one class of assets (those reduced or converted by the previous administrator) over which he had no control. His powers, being limited, could not be called general; limited, however, not in the character of his functions, or the nature of his powers over the assets, but as to the subjects over which his authority extended ; a limit of area, not of prerogative. He had the same power and discretion over, and property in the assets of the estate, as his predecessor had. He could not preserve assets converted by the administrator in chief.- These had ceased to be assets of the estate, by the devastavit of the administrator in chief. There is not one word in the Code, under the clauses which relate to special administrations, which does not show that such administrations are limited as to the character of the powers exercised ; a limit of prerogative, not of area. What is meant by special, or limited administrations in this State, and under our statutes, is shown in the case of Flora v. Mennice, 12 Ala. 886.

In the order appointing Messrs. Walker & Briekell, the probate judge employs many of the very words which our statutes employ in defining the powers of a special administrator. Does this mean nothing ? Can it be supposed that the probate court was guilty of the supreme absurdity of specifying certain conferred powers, when it was intended and understood that other and larger powers were thereby imparted ? Why be so specific, when a general appointment of administrator of the goods and effects of testator, left unadministered by the administrator in chief, would not only have conformed to the usual rule, but would have been at once precise and brief ?

But the practice has become general, if not universal, with good pleaders and clerks, of copying the language of the statute, whenever the aim is to pursue a statutory remedy. Such is the case in indictments, probate proceedings, and in all summary jurisdictions; and these quotations from the statute are the only evidence on which the court acts, in determining under wbat statute the proceeding is had. The courts have always acted on such evidence, and, without the observance of such rule, the court must grope in uncertainty and doubt, whenever such proceedings come up. Now, when a case comes up which, by quotations, shows the statute under which the pleader is proceeding, is it safe to regard such quotations as surplusage, and hold that the proceeding is under a different statute, to which no reference whatever is made ?

But, since the passage of the statute of 1857-8, referred to above, an administrator de bonis non is not properly a functionary of limited powers. It is his province and duty, not-only to possess himself of all effects remaining in specie, but to bring his predecessor to a' settlement, and recover from him, or his representative, all assets not previously disbursed in proper administration. How, then, can he be called a special administrator ? Special as to what ? What character of assets is there, to which the powers of an administrator de bonis non, under our present statutory law, do not extend ?

BYRD, J. — The court have carefully considered the reasoning and conclusion of the opinion heretofore delivered in this cause, and the arguments presented in the brief of the learned counsel for the appellants; and we are satisfied to adhere to the conclusion announced in that opinion.'

Let the decree of the probate court be affirmed, at the costs of the appellant.