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Adams v. Broughton, Adm'r, &c.

course of law, on the part of the pretended lender; or where any reservation or limitation shall be pretended to have been made, of a use or property, by way of condition, reversion, remainder, or otherwise, in goods and chattels, the possession whereof shall have remained in another as aforesaid; the same shall be taken as to the creditors and purchasers, of the persons aforesaid, so remaining in possession, to be fraudulent within this act; and that the absolute property is with the possession; unless such loan, reservation or limitation of use or property, were declared by will or deed, in writing, proved and recorded as aforesaid." Clay's Dig. 254, § 2.

It is obvious from the terms of the act, that it was never intended to apply where a deed was executed in another State, and the property embraced by it was there in the possession of one of the parties, or some third person, without an intended removal. Here, in addition to the deed being executed abroad, while the property was there, the parties themselves were non-residents, so that it was impossible to register the deed upon proof or acknowledgment, "in the circuit court, or county court, wherein one of the parties lives, [lived] within twelve months after the execution thereof."

We have said, that the deed was operative as a gift at common law, and in the absence of proof to the contrary, it must be intended that the common law prevails in Georgia. If this be so, there is no principle that made the registration of the deed in that State, essential to the protection of the interest of the donee against the creditors of the donor.

In Catterlin v. Hardy, et al. 10 Ala. Rep. 514, a deed was made in North Carolina, in 1831, by which a father professed to loan to his son, and the wife of the latter, certain slaves for their joint lives, and the life of the survivor of them; and afterwards to go to the children, in absolute right. Held, that upon the removal of the slaves to this State, it was not necessary to register the deed, and that the remainder in favor of the children, was not an incumbrance on the estate of the son and daughter-in-law. This case might be regarded as an authority directly in point, if it appeared that the decision of the question noticed, was founded upon the construction of the second section of the statute of frauds; but

Adams v. Broughton, Adm'r, &c.

from the language employed, it is most probable that the attention of the court was only called to the act of 1823, "to prevent fraudulent conveyances." Clay's Dig. 255, § 4.

It is a settled principle, that the laws of one State will not be recognized by another, if they are repugnant to its policy, or the legal interests of its citizens. Story's Confl. of Laws, 32. Nor will a contract made in one State be enforced in another, if it is immoral or unjust, or injurious to the rights, interest or convenience of the State or its citizens. National comity will not be allowed to operate to the prejudice of the State which acknowledges it. Id. 203, 271.

If a contract is void by the statute of frauds, at the place where it is made, because it was not evidenced by writing, it is void every where; but if it was good where it was made, though not conformable to the laws of the State in which it is attempted to be enforced, it will be recognized as valid. Story's Confl. of Laws, 219.

In the gift by the father to his son, with a reservation of an estate for life, there was certainly nothing immoral or unjust, or injurious to this State or its citizens. Such at least is the inference from the case as presented by the record, and if the reverse is true, it should have been proved at the trial, and the charge of the court prayed upon the facts. If the legislation or judicial decisions of Georgia, were adverse to the validity of the gift, they should have been shown in the circuit court, as matters of proof. The transaction in Georgia, we have seen, is not obnoxious to our statute of frauds, although the parties and property afterwards removed to this State; and it would be an unwarrantable restriction of national comity to refuse to give it effect here. We know of no legal warrant for an extension of the policy of the statute to a deed executed abroad, between non-residents, in respect to property not within the State; especially if, at the time, it is not intended to be brought here. The objection then, that the deed in question was not registered, cannot prevail, so as to defeat the gift, even in favor of the creditors of the donor.

Price v. Simmons, Adm'r.

PRICE v. SIMMONS, ADM'R.

1. Upon a writ of error sued out upon a final decree in the orphans' court against an administrator, he cannot assign for error, that he had been im-› properly removed from the administration, by a previous decree of the

court.

2. An erroneous judgment, and award of execution, in favor of an administrator de bonis non, against a removed administrator, made previous to the passage of the act of 4th February, 1846, authorizing such a decree to be rendered, is not cured by the passage of that act.

Writ of Error to the Orphans' Court of Benton County.

THE plaintiff in error, by virtue of his office of sheriff of Benton county, was appointed administrator with the will annexed, of William Burns, deceased, by the orphans' court of Benton. He returned an inventory, and an account of sales. On the 14th day of January, 1842, the legatees under the will, made application to the orphans' court, to have the letters issued to the plaintiff in error revoked, and that James L. Simmons be appointed administrator de bonis non, with the will annexed. This application was granted, the letters granted to Price as sheriff were revoked, and Simmons appointed administrator de bonis non, on the same day. It does not appear from the record, that the plaintiff had any notice of these proceedings. Simmons having given bond and security, the plaintiff in error was ordered to pay over to him the assets in his hands.

On the 6th of September, 1844, the defendant in error filed his petition in the orphans' court, setting forth the facts of the appointment and removal of Price as administrator, his own appointment as administrator, and averring that Price yet had in his possession assets belonging to said estate, amounting to near $3,000. The petition concludes with a prayer for a citation against Price, that he be required to make a final settlement of the estate, and that judgment be

Price v. Simmons, Adm'r.

rendered against him for the amount in his hands not accounted for. Citation was ordered, and served on Price, the plaintiff in error; he appeared, and the cause being continued from time to time, on the twenty-second November, 1844, he filed his accounts and vouchers, which show a balance in his hands of $1,609 29. Amongst his vouchers, is a receipt to the plaintiff in error, by the defendant in error, for $8,826 91. Publication was then ordered to be made, requiring the legatees under the will, and all others interested, to appear on the 3d Friday of January, 1845, and show cause why the administration of said Price should not be finally settled according to the accounts and vouchers on file. On the day appointed, Price and Simmons, and the parties interested under the will appeared, and a final settlement was made, and on the settlement, it was found that the plaintiff had in his hands the sum of $1,982 69, money belonging to the estate, and thereupon a decree was rendered by the court in favor of James L. Simmons, administrator de bonis non, against Price, for the sum so ascertained to be in his hands; upon which decree execution was ordered to issue.

The errors assigned are

1. The court erred in revoking the letters of administration to him, and in appointing the defendant in error administrator de bonis non, without notice to him.

2. The court erred in rendering a decree against him, in favor of the defendant in error as administrator de bonis non, and awarding execution thereon.

MORGAN, for the plaintiff in error.

Prior to the act of February 4, 1846, the orphans' court had no jurisdiction to render judgment in favor of an administrator de bonis non, and order execution thereon. Rep. 721.

9 Ala.

It was error to remove Price without notice. 11 Ala. 461.

RICE, Contra.

DARGAN, J.—The plaintiff in error, cannot assign for error, on this record, the judgment of the orphans' court removing him from office without notice. This was done in

Price v. Simmons, Adm'r.

1842, and is a separate and distinct judgment, from the decree of final settlement, and to reverse which this writ of error was issued. The judgment of the orphans' court, if even erroneous, caunot now be reviewed on error, for the plaintiff was administrator by virtue of his office as sheriff, and when his office expired, his letters of administration ceased, or his authority as administrator ceased with his office." Besides, the statute of limitations is a bar to a writ of error, on the decree of the orphans' court, rendered 6th September, 1842 even if this decree was erroneous for want of notice, the consideration of which we waive, the plaintiff cannot review it. But the decree of the orphans' court, rendered January, 1845, on the final settlement in favor of Simmons, as administrator de bonis non, against the plaintiff in error, and awarding execution thereon, is erroneous.

In the case of Willis v. Willis, 9 Ala. Rep. 721, this court, after a full review of the statutes, determine, that if an administrator be removed, and an administrator de bonis non be appointed, and final settlement is made with the administrator in chief, and a decree is rendered against him in favor of the administrator de bonis non, and execution thereon is awarded, that such decree is erroneous. That it is not authorized by any statute, and cannot be supported. This decision was made at the January term, 1846, and on the 4th of February, 1846, to supply what the legislature supposed was a defect in the law, in this respect, a statute was passed, authorizing the orphans' court, on a final settlement with the administrator in chief, to render a decree against him, either in favor of the administrator de bonis non, or in favor of the heirs or distributees, as the court may see fit. The decree in this case being rendered before the passage of this statute, was erroneous at the time of its rendition, and this act does not relieve it of the error, and consequently, the decree is reversed.

CHILTON, J., not sitting.

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