Clemens v. Wilson , 40 Ala. 219 ( 1866 )

BYRD, J.

In the case of Clemens v. Walker & Brickell, decided at the present term, we refer to the difficulty of construing orders made by some of the courts of probate. This difficulty occurs often, and occurs in this case. The order appointing Walker & Brickell administrators of the estate of James Olemens, deceased, is set out in this record, but was not in the other. It is apparent that they applied “for letters of special administration”; but the character or kind of administration is not shown. An administration de bonis non, as is shown in the case of Clemens v. Walker & Brickell, is a special administration. Upon the application the court made the following order: “ It is ordered that said Eeroy P. Walker and Eobert O. Brickell be, and are hereby, appointed administrators of said estate of James Olemens, deceased, and that letters of administration issue to them, authorizing them to collect and preserve the property thereof.” The grounds for making the grant stated in the order are, 1st, “that there has been a vacancy in the office of administration of said estate, for more than forty days”; and, 2d, “no person entitled to administration having applied.” Conceding that these two grounds author-' ized the court to appoint a special administrator, they certainly did not authorize it to appoint any but an administrator de bonis non.

The court, by its order, “appointed Walker & Brickell administrators of said estate of James Clemens, deceased” ; and this appointment constituted them administrators de bonis non of said estate, under the authority of the case of Moseley's Adm’r v. Mastin, 37 Ala. 216, and authorities there cited. — Broughton v. Bradley, 34 Ala. 694.

It is the order of the court which confers the office of administrator, and not the letters which are issued. — Hosea v. Brasher, 8 Porter, 559; 5 Ala. 264. The clause of the order, which directs “that letters of administration issue to them, authorizing them to collect and preserve the property thereof,” is merely directory as to the contents of the letters, and confers no power; but to restrict that previously granted, is the greatest effect that can be given to it. It is consistent with the duty of an administrator de bonis non “to collect and preserve property of an estate,” until he is authorized by the court to distribute it among the legatees or distributees, or sell it to pay debts, or for distribution. This is the only consistent-construction we can give the order. It does not confer a limited administration in time, as all other special ones do, except an administration de bonis non. It has none of the indicia of such a limited administration, except that the court, in ordering letters to issue, directs that he be authorized to collect and preserve the property of the estate; and this is reconcilable with the grant of an administration de bonis non. AU the other indicia, upon the face of the order, show it to have been such a grant: 1st, there is no ground set out in the order that would authorize any other than an administration de bonis non; 2d, such an administration is a special one; 3d, it is the only one and the proper one which ought to have • been granted, upon the recitals of the order; 4th, the operative words confer a general, and not a special administration ; but the ease of Moseley’s Adm’r v. Mastin, supra, shows how such an' order is to be construed; and the only thing in opposition to this view, is the direction given as to the contents of the letters of administration, which is shown to be reconcilable with the grant conferred by the operative words of the order.

We therefore hold, that the order, upon its face, conferred upon Walker & Brickell the office of administrators de bonis non of the estate; and the will being on record in the court from which they procured their authority, does not render the grant void, (Broughton v. Bradley, 34 Ala. 694,) and they must administer the estate subject to the provisions of the will, so long as its probate is operative and valid, unless the administrator in chief had fully executed tbe duties and trusts contained in it. There is, then, no necessity for the writ of mandamus to the judge of probate, and it must be refused.

Note bx Reporter. — On application by the appellant’s counsel for a re-hearing, the following opinion was after-wards delivered: '

The judgment is affirmed.

BYRD, J. — We have carefully considered the able argument of the counsel for appellant, submitted in reply to the opinion of the court heretofore delivered in this cause ; and while we admit its force, we adhere to the reasoning and conclusion of that opinion, and re-affirm the decision of the judge of the circuit court of the 5th judicial circuit.

Affirmed at the costs of the appellant.