
    Gallatin Turnpike Co. v. Puryear.
    
      (Nashville.
    
    December Term, 1905.)
    1. ADMINISTRATOR DE BONIS NON. Limitation of time for appointment applies to.
    The statute prescribing the several periods of limitation within which administration may be granted upon the estates of decedents applies to administrators de honis non, as well as to original administrators.
    Code cited and construed: Sec. 3955 (S.); sec. 3061 (M. & V.); sec. 2220 (T. & S. and 1858).
    Cases cited and distinguished: Crossan v. McCrary, 37 Iowa, 684; Adams v. Richardson, 5 Tex. Civ. App., 439; Kempton v. Swift, 2 Mete. (Mass.), 70; Bancroft v. Andrews, 6 Cush. (Mass.), 493; Holmes, Petitioner, 33 Me., 577.
    2. SAME. Appointment of, cannot be attacked collaterally.
    The county court having original and independent jurisdiction of the appointment of administrators and the revocation of their letters, a defendant sued by a person acting as administrator de honis non, under the apparent authority of the county court, cannot, in such suit, collaterally question the validity of the appointment of such administrator.
    Cases cited and approved: State v. Anderson, 16 Lea, 321; Wilson v. Frazier & McKinney, 2 Humph., 31; Wilson v. Hoss, 3 Humph., 142; Franklin v. Franklin, 91 Tenn., 119.
    3. SAME. Same. Same. One sued by administrator may attack . appointment in county court, when.
    Where the county court has exceeded its authority and granted administration after the time limited by statute therefor, a person sued by one acting as administrator de honis non, under the apparent authority of said court, has such an interest in the question of the validity of the appointment of such administrator as entitles him to apply to the county court issuing the letters for a revocation of the administration upon the grounds above stated.
    PROM SUMNER.
    Appeal from the Circuit Court of Sumner County.— D. B. Bell, Judge.
    J. W. Blacicmore, for Turnpike Co.
    W. A. Guild and D. B. Puryear, for Puryear.
   Mr. Justice Neil

delivered the opinion of the Court.

On the 15th of January, 1904, a petition was filed by plaintiff in the county court of Sumner county against the defendant. This petition contained the following allegations:

That John Byrns died intestate in Sumner county, Tennessee, in the year 1841, and that at the January term of the county court of that county in the year 1842 administration was granted on his estate; that in January, 1903, sixty-two years after the death of said Byrns, the county court made an order appointing another administrator for said estate, viz., the defendant, D. B. Puryear, who, under color of this appointment, has as such administrator de bonis non brought suit against the petitioner in the chancery court of Sumner county.

It is alleged that this action of tbe county court is directly in opposition to tbe provisions of tbe Code upon tbe subject, inasmuch as none of tbe exceptions provided for in tbe statute existed in favor of tbe said estate.

Tbe prayer of tbe petition was that tbe administration should be revoked.

A demurrer was filed by tbe administrator, making two points: First, that tbe statutory inhibition did not apply to administrators de bonis non, but only to original administrators; and, secondly, that tbe petitioner did not occupy such a relation to the estate as that it could question tbe appointment.

Tbe county court sustained the second ground of demurrer and dismissed tbe petition. Thereupon an appeal was prosecuted to tbe circuit court of tbe county, and there both grounds of demurrer were sustained, and tbe petition dismissed. From this latter judgment an appeal was prayed and prosecuted to this court, and errors have been assigned here.

The statute referred to is Shannon’s Code, sec. 3955.

This section, with its various subsections, reads as follows:

“3955. The time within which administration may be granted shall be as follows:

“(1) When deceased was entitled to a remainder not reduced to possession.— Where a person dies entitled to a vested or contingent remainder, not reduced to possession in bis lifetime, ten years after tbe termination of tbe life or other particular estate on which tbe remainder depends shall be given to administer upon Ms estate in said remainder.

“(2) Administration'may be granted at any time within thirty years from the death of the deceased to any person entitled to distribution who was an infant or married woman when the deceased died.

“(3) A special administration may be granted for the purpose of prosecuting any claim against the government of the United States, without any limitation of time.

“(4) But in no other case shall letters of administration be granted where the deceased died twenty years before application made for the same; and all letters testamentary or of administration granted after the said period of twenty years, to any other than a distributee who was such infant or married woman, shall be utterly, void and of no effect.”

In the brief of counsel for the defendant in error we are referred to the statutes and decisions of other States ■ — the decisions referred to being Crossan v. McCrary, 37 Iowa, 684; Adams v. Richardson, 5 Tex. Civ. App., 439, 27 S. W., 29; Kempton v. Swift, 2 Metc. (Mass.), 70; Bancroft v. Andrews, 6 Cush. (Mass.), 493; Holmes, Petitioner, 33 Me., 577.

The Iowa and Massachusetts statutes seem to refer in terms to original administrations, and in Texas there seems to be a special provision in favor of administrators de ~bonis non.

These cases afford no aid in the construction oí onr statute.

We are of the opinion that the section of the Code which we have quoted was intended to cover the whole subject, and, no saving- having been made in favor of administrators de bonis non, we can make none. It was designed as a statute of repose.

The first ground of demurrer must therefore be overruled.

The second ground must also be overruled. The complainant having been sued by the defendant, acting as administrator under the apparent authority of the county court, it had a direct interest in the question, whether he was a legal administrator. Under our decisions it could not raise the question collaterally in the suit brought against it, since the county court has original and independent jurisdiction in the appointment of administrators, and in the revocation of their letters. State v. Anderson, 16 Lea, 321; Wilson v. Frazier & McKinney, 2 Humph., 31; Wilson v. Hoss, 3 Humph., 142; Franklin v. Franklin, 91 Tenn., 119, 18 S. W., 61.

Having the interest stated, and there being no law authorizing the petitioner to make the controversy in any other court, it necessarily follows that it had the right to apply to the county court to test the validity of the appointment, and, in case that court should declare the appointment invalid, then to have the letters revoked.

Of course, Ave do not wish to be understood as intimating that a defendant, sued by an administrator, could institute an action in the county court for revocation of his letters, on the ground of any mere irregularity fallen into by the county court in the exercise of its powers, or that such defendant could raise a question as to Avhether that court had passed over one having a preferred right to administer and had selected one having an inferior claim. The present case, according to the facts set out in the petition, is one wherein the county court had passed the bounds of its authority under the statute; yet it is apparent that the court referred to was the only one that could deal with the question, since we cannot say that its action was absolutely void on its face, as it is possible one of the exceptions provided for in the statute may have existed.

It results that the judgment of the circuit court must be reversed, and the cause remanded to that court, with directions to reverse the judgment of the county court dismissing the petition, and to remand to that court for further proceedings.

Defendant will pay the costs of this court and of the circuit court.  