Russell v. Erwin's Ad'mr , 41 Ala. 292 ( 1867 )

JUDGE, J.

The act of the legislature authorizing the appointment of a general administrator and general guardian for Mobile county, approved December 11, 1859,(Acts 1859-'60, p. 551,) provides, “ that the court of county commissioners of said county shall recommend and name the person to be appointed such administrator and guardian.” It is contended that the order of the probate court, committing the administration of Erwin’s estate to McGuire, the appellee, as the administrator general of Mobile county, is void, because the order fails to show that McGuire had been appointed such administrator general, pursuant to the requirements of the act of the legislature above cited. This position we hold to be untenable. The jurisdiction of the probate court, as to the granting of letters testamentary and of administration, is conferred by the constitution of the State, and is original, general, and unlimited.—Ikelheimer v. Chapman’s Adm’rs, 32 Ala. 676; Gray’s Adm’r v. Cruise, 36 Ala. 559. It is, to this extent, a court of general, not of limited, or special jurisdiction ; and, in accordance with a well-established rule, every reasonable intendment will be made, in order to support the jurisdiction when assailed, especially when it is brought in question collaterally. We must, therefore, intend that McGuire was appointed administrator general of Mobile county, in conformity to the requirements of the act of December, 1859.

2. The act of December 12, 1857, “ to prescribe the duties, rights, and liabilities of general administrators, where they resign their office,” provides, that the resignation of his office by any general administrator shall not operate to discharge him from the administration of any estate previously committed to his charge as such general administrator ; but that he may be removed from the administration of any such estate for cause, “ or may resign his administration thereon, by leave of the probate court of his county.” Previous to the appointment of McGuire, administration on the estate of Erwin, deceased, had been committed to one Eranldin G. Kimball, as general administrator of the county; and he had resigned the trust. It is contended that it does not appear that Kimball’s resignation was by leave of the court; that in that event alone could he legally resign; and that, therefore, the appointment of McGuire was illegal and void. The order appointing McGuire recites, that Kimball had “ duly resigned” his administration; and the appointment of McGuire to succeed Kimball in the administration, coupled with the recital stated above, makes it sufficiently clear that the probate court had sanctioned the resignation of the latter.

3. McGuire, as the successor in the administration, was properly made a party plaintiff, on motion, in the court below. Section 1925 of the Code expressly authorized it; and, besides, no objection was made to it, at the time the motion was granted. Therefore, the motion made at a subsequent term of the court, to strike the cause from the docket, on the ground that McGuire, as administrator, had been improperly made a party, was rightfully overruled.

4. The rule of law is well settled, though there is sometimes difficulty in its application, that if a written instrument is perfect and complete of itself, parol evidence can not be received to add another term to it, or to change its legal effect. This rule was not violated in permitting the witness Ledyard to testify that he, as the agent of Mrs. Kebecca Erwin, as administratrix of the estate of Isaac H. Erwin, deceased, took the lease from Thompson for the benefit of said estate. Parol evidence, it has been held, may be received, without doing violence to the rule stated, which shows for whose benefit a contract is executed, or which shows that a contract was that of another person than him in whose name it is executed.—McTyer v. Steele et al., 26 Ala. 187; Branch Bank v. Coleman, 20 Ala. 110.

5. The lease, and, in connection therewith, the evidence of the witness Ledyard, were competent evidence, notwithstanding the defendant Russell was neither a party nor privy to the lease. The suit was originally brought against Ellen Thompson, James Russell, and Theodore Petit. At a term of the court before the trial, Russell, though already a party defendant, asked and obtained leave of the court to defend the suit as landlord of the premises. At a subsequent term, as appears from a recital of the record, he asked leave to be made the sole defendant to the suit; but no action of the court appears to have been had on this motion. At a term of the court still subsequent to this, the plaintiff moved for leave to “ amend his complaint fully;” to which the defendants assented. Thereupon, an amended complaint was filed, on which the case was tried, embracing the same parties defendant, viz., Ellen Thompson, James Russell, and Theodore Petit. Ellen Thompson being a party defendant, it was for this, if for no other reason, competent to introduce the lease in evidence, and to show her connection therewith, and the payment of rent by her, thereunder. The plaintiff was not deprived of his right to introduce this evidence, by the leave which had been granted to Russell to defend as landlord; and such would not have been the effect, even if Russell had not been an original party defendant.—Davis v. McKinney et al., 5 Ala. 719 ; Noble v. Coleman and Gunter, 16 Ala. 77. It was competent for the defendant Russell to protect himself against any illegal effect of the evidence, by the asking of an appropriate charge from the court.

6. The plaintiff’s action was not dismissed or discontinued as to either of the defendants. As before stated, the case was tried on a complaint which embraced each one as a defendant; though the judgment-entry may be construed to be against Eussell alone. But if this be so, it is a clerical misprision, which is amendable, and not available on error. This court will not consider of such error in the first instance.—McDowell v. Mitcham, 37 Ala. 417; also, Amarine v. McCaskle, 12 Ala. 17.

7. The court was requested by the defendant to charge the jury, “that the plaintiff could not recover on any right or title in Isaac H. Erwin, or his estate; which charge the court refused to give, and to which refusal the defendant excepted.” The bill of exceptions does not purport to set out all the evidence of title in Erwin or his estate; and the charge requested raises no question in regard to the sufficiency of that title to authorize a recovery. Having de-f termined that McGuire was lawfully the administrator o. the estate, the only question presented by the charge is, as to whether the administrator of a solvent estate may, in this State, maintain ejectment for the lands of his intestate This question has been settled in the affirmative by this court; and, consequently, the court below did not err in refusing to give the charge.—Golding v. Golding’s Adm’r, 24 Ala. 122.

It does not appear that the defendant Russell was in any manner estopped from controverting the title of the plaintiff, or asserting a superior outstanding title to the premises sued for, in himself, if any such existed.

There being no reversible error in the record, the judgment of the circuit court is affirmed.