Leatherwood v. Sullivan , 81 Ala. 458 ( 1886 )

SOMERVILLE, J.

— 1. The letters testamentary were properly admitted in evidence in behalf of the plaintiffs, the objection urged to them, as being void, not being well taken. The granting of these letters was fully authorized by section 2380 of the present Code, fixing the pre-requisite to granting letters to non-resident executors who have qualified in another State. The executors had, pursuant to these requirements, filed in the Probate Court of Escambia county, in this State, a certified copy of the will under which they were appointed, together with a certificate of the judge of the court in Florida, in which State the will was probated, that the will had been “regularly proved and established” in accordance with the laws of said State, and that letters testamentary in due form had been issued to the plaintiffs upon said probate. A sufficient excuse is shown for failing to file with the will a certified copy of any bond —the testator having, in the will, waived the giving of a bond by his executors, and none, therefore, being on file in the court in Florida from which said letters testamentary were issued. Under this state of facts, as shown by the record, no bond was required of the plaintiffs as a pre-requisite to taking out these letters in this State, any more than if the testator had been resident here, and made a like will dispensing with their giving bond for the faithful discharge of their duties as executors. — Code, 1876, §§ 2379, 2380.

2. If the statute were susceptible of a different construction, the failure of the plaintiffs, we may add, to give bond, would not render the grant of administration to them absolutely void, but only voidable. It was so ruled by this court, as far back as the year 1861, in Ex parte Maxwell, 37 Ala. 362, and the principle there settled has never since been doubted. — Cunningham v. Thomas, 59 Ala. 158.

3. There is no merit in the other objection urged to the sufficiency of the certificate made by the judge of the court •in Florida, which granted the original letters to the plaintiffs. The will, it is said, has but one witness, and the laws of Florida require three witnesses to such a paper. The record fails to show what is the law of Florida on this subject, and we can take notice of the statutes of other States only when they are introduced in evidence. Moreover, even were this true, the probate of the will, and the grant of letters by a court of competent jurisdiction in Alabama, would not for this reason be rendered void. Such judgment of probate would be valid until set aside, and would not be subject to collateral attack, as is here attempted by objecting to the introduction of the letters testamentary in evidence. —Dickey v. Vann, present term; Brock v. Frank, 51 Ala. 85; Ward v. Oates, 43 Ala. 515 ; Goodman v. Winter, 64 Ala. 410.

4. It is not denied, as a general rule, and must be taken as true, that when chattels, which in their natural state constitute a part of the freehold, are severed from the soil and become personal chattels, they belong to the owner of the land, who is entitled to maintain for them an action of trover, trespass, or detinue, unless the defendant is in possession of the land, from which the chattels were severed, holding it adversely to the claimant, and disputing his title. Carpenter v. Lewis, 6 Ala. 683 ; Brown v. Sax, 7 Cowen, 95; Curtis v. Grant, 6 Johns. 168; Beatty v. Brown, 76 Ala. 267; Stringfellow v. Curry, ib. 394.

5. The evidence here shows that the defendants were mere trespassers, and that there was on their part no claim of adverse possession, when they cut from the land the pieces of timber sued for. It is contended, that the right of action is not in the executors, but in Martin H. Sullivan, who is the residuary legatee under the will of the testator, because the title of the land was vested in him. This contention is based on the fact that the land was wild and unoccupied timbered land, of which the plaintiffs, as executors, had never been in actual possession except by sending their agents over it for the purpose of preventing trespassing on the premises. There can be no doubt of the fact that an heir or devisee, in whom the legal title of land is vested, can maintain an action of trover, or detinue against persons trespassing on the premises and carrying away timber sevT ered from the freehold, just as he might maintain an action of ejectment for the land. But this right is subordinate to that of the executor or administrator of the estate, who is also empowered to bring an action for the land, or for any injury to it, or for the rents, income and profits of the land, or for anything severed from the freehold. For the purposes of administration the personal representative is the owner of the land to a certain extent, and he may destroy or suspend the heirs’ or devisees’ right of possession and right of action, either by taking actual possession of the lands of the decedent, or by asserting right thereto, and following up such assertion by proceedings to recover them. So he may likewise destroy or suspend the heirs’ or devisees’ right to the rents, income and profits of the land, or for chattels severed from the freehold, by the commencement and prosecution of an action for them in his name, as executor or-administrator of such estate. This principle is so fully stated in the previous decisions of this court as to need no further discussion. — Calhoun v. Fletcher, 63 Ala. 574, where the cases are cited; Cooper v. Watson, 73 Ala. 252; Landford v. Dunklin, 71 Ala. 594.

The rulings of the court all clearly.accorded with the foregoing views, and are free from error.

■ Judgment affirmed.