RAGLAND vs. KING'S ADM'R

RAGLAND vs. KING’S ADM’R. [SUPERSEDEAS OB’ El. EA. AGAINST ADMINISTRATOR’S SURETIES.] •!. Validity of grant of administration de bonis non. — When a grant of letters of administration do bonis non is collaterally assailed as void, on tlie ground that the original administrator had neither died, resigned, nor "been removed, a recital in the minutes of the facts necessary to ■sustain an order of removal, as the reason for the grant of administration do bonis non, will he hold sufficient to uphold the validity of that grant: the action of the court will he construed as amounting- to an •order of removal, or the record will he considered amended so as to ’Show a regular order of removal. Appeal from the Probate Court of Talladega. Ik the matter of the estate of William King, deceased,, on the petition of the appellants, who were the sureties of Solomon Spence, on his official bond as sheriff of Talladega county, to supersede and quash an execution, which had been issued against them, as such sureties, on a decree of said probate court against their principal, as administrator de lonis non of said King. The will of said King was admitted to probate, by the proper court in Talladega' comity, in June, 1S40; and, at the sáme time, letters testamentary thereon were granted to Mrs. Martha King, the widow of the testator, jointly with John C. Calhoun. In September, 1841, Mrs. King baying failed to renew her bond on the requisition of her sureties, D. A. Griffin, then sheriff of Talladega, -was appointed’administrator de lonis non of said. King; the order for Insjappointment being in vibe following words: A “ Whereas, William .Montgomery and G-eorge L. Rag-land, the sureties on the bond of John C. Calhoun and Mrs. .Martha King, executor and executrix of William King’s will, having notified the judge of this court that they were ■no longer -willing to stand as such sureties; and the said judge having caused fourteen days notice to be given to said Martha King, (said Calhoun being dead,) to appear, and renew lier said bond as such executrix, on the 15th September, instant, before this court; and the said Martha -King failing and refusing so to do, — it is therefore ordered by the court, that David A. G-riffin, sheriff of Talladega county, be, and he is hereby, appointed administrator de ■lonis non, with the will annexed, of the estate of said William King, deceased.” At the same time, Mrs. King, “late surviving executrix,” was ordered to appear on the 1st Monday in October then .next, and settle her accounts with said Griffin, “whomthis -court has this day appointed administrator of said King’s estate, in consequence■of the failure of said Martha M. King to renew her bond.” On the 17th of March, 1842, Oriffiifs term of office as sheriff having expired, Solomon Spence, his successor as sheriff, was appointed and qualified as administrator dc bonis non of King ; and in May, 1S45, his official term as sheriff having expired, said Spence was appointed adminis-' fcrafcor in his individual capacity. In December, f848, letters of administration on said estate were granted to Joseph N. Savery, as coroner of the county;-and in March, 1855j said Savery was re-appointed in his individual capacity. In May, 1855, a electee was rendered against Spence, aS administrator in Ins official capacity, in favor of Savery, for $-5,8 ll 79; and-an execution on this decree having been returned “ no property found,” another execution wad thereupon issued against Spence and- his sureties. The sureties then filed a petition, asking .a supersedeas of this execution ; insisting that their liability was barred by the statute of limitations* and that the grant of administration to. Spence was void, because Mrs-. King, the executrix, had neither died, resigned, nor been removed. The probate court sustained a demurrer to.the petition, and dismissed the supersedeas ; and its decree is now assigned as error. . Jas. B. Martin, for appellants* L. E. Parsons, contra< [MAJORITY — R. W. WALKER, J.] R. W. WALKER, J. The questions-which aris'e in this ease are identical with those which have been considered and determined in the case of Ragland v. Calhoun’s' Adm’r, (36 Ala. 606,) except that, in addition to the defenses urged by the.sureties in the latter case, the, petitioners here assail the order for tire appointment of Spence as administrator cíe bonis non of King, as void, upon the ground that Mrs* King, the‘original administratrix, had neither died, resigned, nor been removed, and that her administration was therefore still outstanding when Spence was appointed* Although there is no formal order for tile removal of Mrs* King, yet the facts necessary to sustain such an order are recited in the minutes, as the reason for the grant of administration to Spence 5 and with the view of sustaining the -second grant of administration,' When-- cottatemBy- assailed, we think it is proper to consider the action of the court as amounting-to-'the removal of'the administratrix. If the validity of the subsequent proceeding could, not be -otherwise upheld,- we would consider the record as having been amended, seas to show a regular order of removal. Speight v. Knight, 11 Ala. 461; McLauren v. Thompson, Dudley’s Law R. 335 ; State v. Mays, 24 Ala. 204. Decree affirmed. A. J. Walker, C. J., not sitting.