MOSELEY'S ADM'R vs. MASTIN

MOSELEY’S ADM’R vs. MASTIN. [DETINUE EOlt SIAViBS.-] Is. Válííliiy of' grant of administration. — A.grant oft letters of administra, tion in chief, -when there has been in fact a,previous.administration, which had terminated by the death of the administrator, (these facts not. appearing in the second grant,) <is valid .as a grant of administra, tion ile Vonis non, and void only as to the excess of authority which it purports to confer. 2i Judicial notice of meaning of words. — The appellate eourt will take judicial notice of the fact, that the word ‘"ailfn’r,” following the plaintiff’s name in the complaint, is an abbreviation for the word administrator. 3; Admissibility of parol eviclenoein aid of record. — A grant of letters of administration on the estate of E. M., deceased, when it appears that there were two persons (father and sou) of that name, eaoli leaving an estate in the county to be administered, may be shown by parol to refer to the estate of the son. 4. Presumption of injury from error. — If evidence is erronoonsly excluded by the primary court, on a single speciiied ground, thoappollate court will presumo injury from the error, although it appears that the evidence was, prima facie, inadmissible on another ground, which, if the objection had there been raised, might have been obviated by the introduction of other evidence. Appeal from the Circuit Court of Montgomery. Tried before the Hon. S. D. Hale. This action was brought by Joseph D. Hopper, as the administrator of Elisha Moseley, junior, deceased, against Peter B. Mastín. In the summons, the plaintiff was described as the administrator of Elisha Moseley, jr., deceased ; m the marginal statement of the parties’ names in the complaint, “as athn’r of Elisha Moseley, jr., deceased and in the body of the complaint, “as aclm’r of a,11 goods and chattels, rights and credits of Elisha Moseley, jr., deceased, which were left unadministered by the administrator in chief.” The slaves in controversy belonged to Elisha Moseley, senior, who was the father of plaintiff’s intestate, and were given by him to his said son, on the marriage of the latter, in L836, or 1837. The son carried the slaves borne with him when he commenced house-keeping, and kept them until his death, which occurred about twelve months afterwards. On the death of the son, the father carried his wife and the slaves to his own house, declaring his intention to keep the slaves for the child with which his daughter-in-law was then pregnant. Letters of administration on the estate of the son; were granted to the father on the 2d March, 183S, but he did not include the slaves in his inventory of the estate r and in January, 1840, on settlement of his accounts, a decree was rendered against him, in favor of the intestate’s wife and child, for the balance of money ascertained to be in his hands, but he was not discharged from the tr-ust- The father died in 1843; and the slaves were afterwards sold by his administrator, under an order of court, and were purchased at the sale by the defendant. The father.'and son both lived and died in Montgomery county, Alabama, and letters of administration were there granted om their respective estates. After having proved the facts above stated, the plaintiff offered to read in-, evidence his letters of administration, which were granted’ by the probate court of Montgomery, on the 6th August- 1858, and which were in the following words ;■ “This day came Joseph IX Hopper, and applied for letters of administration on the estate of Elisha Moseley, deceased;: and it appearing to the court that the deceased has- been dead' more than-forty days, and that lie died in Montgomery county, Alabamaand the said Joseph D. Hopper having entered into bond, in the sum. of six thousand dollars,. with J,E. Jackson and Thomas-H. Watts as his sureties, and taken the oath of office, it is ordered, that letters of administration, issue to Joseph D. Hopper on. the estate of Elisha M'oseley; deceased; and ordered, that said administrator make return of an inventory to the court in sixty days.”'’ “The plaintiff stated, that he expected to", prove, in connection, with, said order, that lie bad duly-qualified as such administrator, pursuant to said order, and! was acting as such under it at the commencement of this-* suit, The defendant objected to the reading of said ,oa’déiY in evidence, on the ground that, on the facts hereinabove-stated, said order was null and void,; and on the further ground, that there was a-variance between the complaint and said evidence, because.;the order showed thatbhe was appointed administrator generally, while he sued as administrator de bonis non.’’’ The court sustained the objections, and excluded the evidence; to which, the .plaintiff excepted,, and took, a nonsuit;, aud he now assigns:tbis'-au-lingsof the court as error. Watts, Judge & JagksoN, for appellant. The grant of. administration to the plaintiff was not void. — IJcelheimer v.. Chapman’s Adm’r, 32 Ala.-676.,; Savage v. JBcnham, 17 Ala. 119; Herbert v. Hanriek,A6 Ala. 5S1 ; Speight v. Knjght,, 11 Ala. 461. The entire record of the administration,on the estate, taken together, shows that the.grant could not be an administration in chief, but could only operate as an administration de bonis non ; and as such it must be considered, since.it is not void. Hence, the.plaintiff was properly described as administrator da,bonis non, and there .was no variance. Goldthwaite, Rice'& Sempee,-contra. The rights arid liabilities of an administrator in chief are different from those of an administrator ‘de bonis non. — Enicks v. 'Powell, 2 Strob. Eq.196. 'The title of an administrator in chief relates back to the'death of the intestate, while-the title of an administrator 'de bonis--non reaches- only to the assets which were not ddmiuistered' by his predecessor; and defenses may sometimes be--made against the -one, which would not avail against the other. — Judge, &e. v. Priee, 6 Ala. 36 ; Fambro v. Gantt, 12 ‘Ala. 29S. 'The difference between these two kiilds of administration constitutes a fatal variance between the allegations and proof in this case. Scott v. Dansby, 12 Ala. 714; Flake & Freeman v. Day, 22 Ala. 132,; Agee v: Williams, 27 Ala. 644 ; DIU v. lialher, 30Ala..'57. [MAJORITY — A. J. WALKER, C. J. A. J. WALKER, C. J.] A. J. WALKER, C. J. AThe grant,of .administration to ¡the appellant was not void, on account of the omission of ,a recital of the facts upon which the jurisdiction of the court was predicated. — Ikelheimer v. Chapman, 32 Ala. 676; Savage v. Benham, 17 Ala. 119. As there had been a previous administration upon the estate, which was terminated by the administrator’s death, there could not be an administration in chief, and it was improper for the court to appoint an administrator generally. The appointment should have been in-terms restricted to the character of an administrator de bonis non. But wo-do not think the appointment ought therefore-to have been held void in toto. The authority of an administrator d'e home non is precisely that of an administrator an chief, lessened-in consequence of the previous administration ; -and -the- -errar ef the court, in omitting to properly qualify the grant of administration, had only the effect of conveying an excess of power ; and the grant of-'¡adm¡knstrat'ien should be held void only for the excess- of •'authority. A consideration of the appointment, -in connection with the previous administration, shown by -the records of -the court, qualifies-it, and gives it the character of on administration de-bonis non. The plaintiff was, therefore, properly described as administrator de bonis non; tmd the apparent- .variance -between the character in -, which he--sues, and--that bestowed by-the grant of administration,-is-harmonized and reconciled by the' facts, that there had been a previous administration, which was terminated by death. — See Steene v. Bennat & Sergeant, 34 Verm. 303 ; and Grand v. Herrera, 15 Texas, 533, which seem to be precisely i-n point, sustaining the foregoing views. 'Note ijy Reporter. — The appellee’s counsel afterwards ^ubmitte'd a'-petition for a rehearing, in which they urged UP affirmance of the judgmeut-of’the circuit-court, on'tho following grounds : 'l..As the-plaintiff never hiid possession-of the slaves, he cannot recover-in his -irfdividual 'character.— George ~v. English, 80 Ala. 583. Looking to the body of the conn-plaint, the only words descriptive of. his representative character are, “as aclm’r of all ttie goods-and chattels,” &c., “left unadministered by the administrator in chief; and since nothing is averred to, excuse theprofert and proof, of bis representative character,,{Worthington v.,MeB,oberts-,. 7 Ala. 814,) and the defendant is not estopped from, denying it, (Harbin v. Levi ', 6> Ala.. 399;), this court will not presume, against the judgment of the circuit court, that these words indicate a suit by him. as administrator. — Chapman v. Spence, 22i Ala.,588. No intendments are to be made in favor of the' pleader, and against the correctness of the judgment.^-Nroy v Griffin, 6 Ala. 387 ;i Agee v. Williams, 27 Ala. 644;; S. C., 30 Ala. 036 ;; George v.. English, ,30 Ala. 5S3. .¡Judgment reversed, and cause remanded. 2. But, if the action is brought by the plaintiffl'in-his representative character, the order' of the probate court was properlyexcluded. A grant of letters of- administra*tion on the estate of “Elisha Moseley, deceased,”’without any other addition, or description, of the person; when it is', shown that there were- two deceased persons, father and! «on, each bearing that name, and each leaving an estate in, the county, nrnst be construed and held as a grant of administration on the estate of the father.-, — Wilson o. Stubs, Hobart, 330Tjepiot o. Browne, 1 Salkeld, 7, pi. 16 ; Sweet— ing v. Fowler, 1 Starkie, 106 ; Boyden v..Hastings, 17 Pick. '200. The construction., of the order, of the probate court was a question for the determination of the court, and' with which the jury had nothing to do. — Wyatt v. Steele, 26 Ala. 639 ; Bishop v., Hampton, 15 Ala. 761 ; S. C., 1,9 Ala. 792. Parol evidence was-not admissible to change the legal effect of the grant; by showing that it was intended to refer to the estate of tire son;-, — Hudson v. Gayle, 1-iO-, Ala. 116 ; Flóurnoy o: Mims, 17 Ala. 36 ; Ware v. Boberson, 18 Ala.. 105. No such evidence was offered by plaintiff, evemif it were admissible ; and this court will not presume, forrthe purpose of reversing the judgment, that the plaintiff could have made the necessary proof. In response to ’this application, the following opinion was, on a subsequent cla'y of the tom, delivered : A. J. WALKER, C. J. As to the first point made in the petition for a rehearing, we have only to say, that the court must judicially take notice of such abbreviations as “ adm’r,” or acknowledge itself incompetent to understand the commonest writings. After a careful consideration of the -second point made, and the authorities adduced in support of it, we «cannot find in it a reason for 'ohapging the conclusion which we have heretofore announced. The authorities cited by the counsel show, as we think, most clearly, that if the administration would, under the circumstances stated, -be deemed prima facie an administration upon the estate of the senior Moseley, it may nevertheless be shown -to have been in fact an administration on the estate of the junior Moseley-. Two specific objections were made to the plaintiff’s testimony in the court below, one of which implied an admission that the administration was upon the estate of the junior Moseley ; and the bill of exceptions states, that the court sustained the objections, and excluded the evidence. The objection -to the evidence stated in the second point of .the petition for .a rehearing, was not one of the objections' made in the court below, but is now brought forward for the first time. If that objection had not been excluded from the attention of the plaintiff’s counsel, and of the -court, by the other specific objections which were made, it .might have been obviated. The court erred in sustaining the specific objections which were made ; and we cannot affirm that it was error without injury, because there was another objection which might have been made, and which, if made, might have been obviated. It is our duty, therefore, to reverse, notwithstanding there may have been another objection, which might have been fatal to the admissibility of the evidence, but which was of such a nature that, if it had been made in the court below, it was capable of being obviated. It must be admitted, that the exclusion of illegal evidence, for a wrong reason, would not be a reversible error. Jordan v. Owen, 27 Ala. 152. But it would be improper for the court to assume that the excluded evidence was illegal. Although it may have been, prima facie, illegal, yet, in connection with over evidence, it might have been made legal. We cannot presume that the other evidence which was necessary, in connection with that excluded, to make out the plaintiff’s right to sue in the capacity of administrator, would not have been offered, when both the motion to exclude, and the order excluding, were expressly pqt upon other grounds than the want of such evidence, and one of those grounds implied an admission that the evidence was not obnoxious to the objection now made. The petition for a rehearing is overruled.