
    Jordan et al. v. Thompson.
    
      Contested Application for Letters of Administration.
    
    1. Petition for letters of administration; not evidence when application for is contested.&emdash;On the trial of a contested application for letters of administration, it is error to permit the petitioner to read, as evidence, his own sworn application for letters.
    2. Record facts ; how proven.&emdash;Record facts ean only be prov.en by the record itself, and when other evidence of them is admitted, it is error.
    3. Will; better practice, when, after application for letters, will propounded. When, on an application for the grant ot letters of administration, it appears that a paper has been propounded for probate as the last will of the deceased, it is the better practice to appoint a special administrator to preserve the assets, until the issue of devisaoit vel non is determined.
    Appeal from Etowah Probate Court;
    Heard before Hon. L. E. Hamlin.
    On December 1st, 1880, John D. Chandler filed bis petition in the Probate Court of Etowah county, praying that letters of administration de bonis non be granted to A. P. Thompson, as sheriff of said county, and ex-officio administrator. This petition averred that Elizabeth G. Jordan, a resident citizen of Etowah county, died there in 1874, leaving personal and real property valued at six thousand dollars ; that in Eebruary, 1876, letters of administration on her estate were granted to T. J. Burgess, as sheriff of said county, and ex-officio, administrator ; that letters were granted to P. D. Lee, as his successor in office, in May, 1878 ; that his term of office, as sheriff, had expired, and that A. P. Thompson was the sheriff of said county, and that there was no administrator of the estate of Mrs. Jordan. That the petitioner was a grandson, and heir at law, of Mrs. Jordan, and resided in Marshall county ; that before the grant of letters to said Burgess the children of Mrs. Jordan converted to their own use all the personal property of the estate, and claimed the title to, and the possession of, the realty ; that at the Spring Term, 1879, of the Etowah Circuit Court, said Lee, as administrator, obtained a judgment against the children of Mrs. Jordan for such conversion, and also recovered the lands; that these causes were taken, by appeal, to the Supreme Court, where one had been affirmed and the other was still pending. This petition was endorsed, “ sworn to, and subscribed bel ore me, this, December 7, 1880. L. E. Hamlin, judge of probate.” On the 7th of December, 1880, said Chandler called up this petition, and John and D. O. Jordan appeared and contested said petition, and objected to the issuance of letters to A. P. Thompson, as sheriff. They introduced in evidence a petition filed by them on December 1, 1880, which averred that on July 24, 1874, Mrs. Jordan executed her last will, a copy o'f which was attached to the petition, and that there was no administration on her estate, and the petitioners, who were sons of Mrs. Jordan, prayed that the will might be admitted to probate, and that a grant of special letters be made to them. This petition was not sworn to, but was filed before Chandler’s petition was filed. It was proven that J. D, Chandler was a grandson of Mrs. Jordan, and that John and D. C. .Jordan were her sons, and were of lawful age. Said Chandler then, by his attorney, offered his petition in evidence, to which the contestants objected, on the ground that it was illegal, and mere hearsay. The court overruled the objection, and permitted the petition to be read in evidence, and considered it in deciding the case. To this ruling of the court the contestants excepted. The court rendered a decree granting letters of administration de bonis non to A. P. Thompson, and denied contestants’ petition to appoint them administrators. This decree is assigned as error by the contestants.
    Aiken & Martin, for appellants.
    — The court erred in admitting the petition of Chandler in evidence, nor was there any proper evidence that there was any suit in reference to the property of this estate pending in the Supreme Court, nor that any case in reference to it had been affirmed by the Supreme Court. The court should have granted special letters of administration.
    No counsel marked for appellee.
   STONE, J.

— The Plobate Court erred in allowing the petitioner, Chandler, to read in evidence his own sworn petition. It was, at most, an ex-parte affidavit, and not legal evidence, that its averments were true. The facts averred therein, some of them, are record facts, and their existence can only be proved by the record itself. The hill of exceptions states it contains all the evidence on which the probate judge acted, and it does not contain the record of the suit and recovery mentioned in the petition. As we can not know what influence this illegal testimony exerted, in forming the judgment and decision of the judge of probate, we cannot affirm that this ruling was error without injury. This works a reversal of this case. — Blunt v. Bates, 40 Ala. 470.

The record shows that appellants had propounded a paper in the Probate Court of Etowah, which they proposed to prove, and establish as the last will of Elizabeth G. Jordan, the right to administer whose estate is the contention in this suit. The paper thus propounded is not found in the present record, and we are not informed what it contains. If its dispositions are different from the law of descents and distributions, and if it be established as a will, then much that has been done, or might take place on the postulate of intestacy, it might become necessary to undo, and administer otherwise. A legally established will becomes tbe law of descent and distribution governing the particular estate, unless it contravenes some rule of law, or of public policy. If there is a will, and that will be established, then administration granted as of an intestacy, would be irregular and revocable. — Braughtan v. Bradley, 34 Ala. 694. In cases circumstanced as this was, when ruled on in the Probate Court, the better practice would be to appoint a special administrator to preserve the assets, until the contest, devisavit vel non, is determined. The consideration which would control in selecting and appointing an administrator with the will annexed, might be very different from those which would govern, if decedent died intestate.

Reversed and remanded.  