The appellant was sued by the appellee in 1866 on a bill of exchange, drawn by A. G. Carr, on, and accepted by her intestate, John H. Cogburn, payable twelve months after date to the order of Carr, who endorsed it to the plaintiff.
She pleaded seven pleas. Issue was joined on the first two, and a demurrer to the remainder was sustained. The bill was the evidence on the part of the plaintiff. The defendant introduced proceedings of the probate court, showing, among other things, her appointment as administratrix, *565a citation to her, at the instance, of Nicholson, one of her sureties, to give a new bond, the filing of her accounts for a final settlement, the appointment of Nicholson and Alford as administrators de bonis non of Oogburn’s estate on the 20th of March, 1867, and the final settlement made by Mrs. Oogburn on the 25th of March, 1867. She next offered to prove that the administrators de bonis non had reported the estate insolvent, and it had been so declared; but the plaintiff objected, and the court excluded this evidence. There was evidence that Mrs. Oogburn had turned over to the administrators de bonis non the assets unadministered by her, but it was not shown how she ceased to be the administratrix.
No executor or administrator of a solvent estate can allege that he has resigned, or been removed, or that his letters have been revoked, or his authority has ceased from any cause, in defense to any action or proceeding, without an averment that he has settled his accounts, and delivered over the assets of the estate as required by law. — Revised Code, §§ 2279, 2238, 2232. But a plea, that before the commencement of the suit, his authority had ceased, the estate had been declared insolvent, and there was an administrator de bonis non, would bar the action, because the appointment of the latter would revoke any former grant of letters, and vest in him the property of the estate. — Revised Code, § 2195. Otherwise, a pro rata disposition of the property between the creditors would be defeated. If a suit is pending when the declaration of insolvency is made, judgment may be obtained, but it must be certified to the probate court. — Rev. Code, § 2209. No execution can issue upon a judgment which is obtained against the representative after a declaration of insolvency.
Tested by these propositions, none of the pleas could have prevented the plaintiff from obtaining a judgment; but the fourth and fifth, if sustained by the proof, would have entitled the defendant to have the judgment certified to the probate eourt.
The evidence of the declaration of insolvency was rejected, and on the evidence admitted, the court charged the *566jury that they must find for the plaintiff. A judgment was accordingly rendered de bonis intestatis.
Whether there was error in rejecting the evidence above mentioned, or in the charge of the court, depends upon the validity of the appointment of the administrators de bonis non.
After the grant of letters of administration to Mrs. Cog-burn, who was entitled to and capable of administering the trust, the probate court had no power to make any new appointment to the office until it was vacated by her death, resignation or removal. Unless there was a vacancy, the appointment of Nicholson and Alford was void. — Matthews, adm’r, v. Douthitt, 27 Ala. 273.
The transcript exhibits a citation to Mrs. Cogburn, issued February 23d, 1867, to renew her bond, orshow cause why her letters shall not be revoked. This she was to do on the 18th of March, 1867. On the.25th of February, 1867, she filed her accounts for a final settlement. The 20th of March, 1867, was appointed for the settlement, a guardian ad litem was appointed for the minors, and publication in a newspaper ordered to be made. At the time appointed for the settlement, it was continued to the 25th of March, 1867, and Nicholson and Alford were appointed administrators de bonis non. On the 25th of March, 1867, the settlement was concluded, and a judgment rendered against Mrs. Cogburn in favor of the administrators de bonis non. It does not appear that any action was taken on the 18th of March, 1867, the day on which Mrs. Cogburn was to answer the citation, or that any court was held. There is no order for her removal. The bill of exceptions recites, that the proceedings of the probate court on this subject introduced, contained all the record which can now be found, but, that there was no proof that any part of said record was lost or destroyed.
In Ragland v. King’s Adm’r, (37 Ala. 80), the sureties of a sheriff moved to supercede an execution issued against them on a decree of the probate court against their principal, as administrator de bonis non, on the ground that his appointment as such was void, the administrator-in-chief *567having neither died, resigned, or been removed. The order appointing him alleged that the former administrator, having been notified to appear on that day and renew his bond, and failing and refusing to do so, the appointment of the sheriff is made. Another order recited that the appointment was made in consequence of the failure of the other to renew her bond. The court said: “ Although there is no formal order for the removal of Mrs. King, yet the facts necessary to sustain such an order are recited in the minutes ; and with the view of sustaining the second grant of administration, when collaterally 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 so as to show a regular order of removal.”
In the case of Matthews v. Douthitt, supra, the administratrix had made application for a final settlement of her accounts. The settlement was made, and her debits and credits being found equal, she was formally discharged. Afterwards an administrator de bonis non was appointed, who cited her to a final settlement again. It was held that his appointment was void, because nothing was shown which amounted to a. repeal of her authority. This case conflicts with the decision, in Speight v. Knight, (11 Ala. 461), that the appointment of a guardian cannot be collaterally assailed, as in a case where the former guardian sought to resist an application of his successor to require him to make a final settlement, on the ground that he had been displaced, without notice, and for an insufficient reason. He was not removed otherwise than by the appointment of a successor.
Assuming the law to be as declared in the case of Rag-land v. King’s Adm’r, supra, we find the following inducements in favor of the validity of the administration dc bonis non: 1st. The citation. 2d. The filing, by Mrs. Cog-burn, of her accounts for a final settlement immediately afterwards. 3d. The application by Nicholson and Alford to be appointed administrators. 4th. Their appointment. *5685th. The final settlement, and the decree against Mrs. C., in favor of her successors. 6th. The subsequent action of the successors, and of. the court, in relation to the estate, and the acquiescence of Mrs. C. therein. These are strong reasons to “ consider the record as having been amended so as to show a regular order of removal, to uphold the validity of the subsequent proceedings.” But how else can the plaintiff prove that there was no vacancy, and that the subsequent appointment was void, than by showing the absence of any order of the court revoking the former grant. The full degree of the perplexity is admitted. On the one hand, the court may have omitted to record an order which was in fact made, and. which other proceedings at the time, and subsequently, rendered indispensable to be made. To declare these void might be to work irreparable injury to the administratrix and her sureties, and involve the succeeding representatives and the creditors in difficulty. On the other hand, to presume the order made, cannot deprive the plaintiff of any valuable right. If the administrator has not accounted for • all of the assets, or is guilty of waste, in which cases, alone, she and her sureties would be liable, she can be brought to account, either in the probate or chancery court. The probate court is one of general jurisdiction for the granting of letters of administration. When the predicate for the removal of the administrator was laid, by the citation to her to renew her bond, or show cause why she should not be removed, and subsequently to the day appointed for her to appear, other administrators were appointed, are we not authorized to assume in a collateral proceeding, that that was done, without which the succeeding action must be void ?
[Note bx Repoetee. — The opinion in this case was delivered at the June term, 1870.]We have given this case most careful consideration, and we decide that the court erred in sustaining the demurrer to the 4th and 5th pleas, and in rejecting the evidence of the declaration of insolvency of the estate of Cogburn.
The judgment is reversed and the cause remanded.
Peck, C. J., dissenting.