[Balkum v. Satcher.] appellant is a purchaser of a portion of the lands of the said decedent, sold by his administrator, under an order of the probate court. The bill sets out all the facts and circumstances attending the sale, including the report of sale, and of the payment of the purchase-money, the confirmation of the sale, the order to make titles, and the execution of conveyances to the several purchasers. It alleges fraud in the transaction, and cites, as instances of it, the sale for cash in 1863; the rebel character of the court of probate; the purchase of some of the lands by the administrator, who had no interest in the estate; the purchase of some by the probate judge himself, who, after he thus became interested, confirmed the sale, and ordered conveyances to be made; the payment of the purchase-money in Confederate currency; and the want of proper notice to the complainants of the proceedings. The prayer is, that the court may "set aside and annul the sale of the lands of the estate of the said Herrin M. Satcher," &c., and "order an account to be taken and stated. . . . concerning the rents, income, and profits of said lands" &c.; and "order, adjudge, and decree that your orators be restored to the possession of all of the lands of their said ancestor; and that a decree be rendered in their favor against said defendant Balkum, for such sum as may be equitable and just; and that said lands be sold by the register, for equitable distribution among your orators, and for such other and further relief as seems to your honor meet and proper." About the middle of 1866, these appellees filed petitions in the probate court to set aside the sale of the same lands, on the ground that the order of sale was void. The same facts and circumstances alleged in this case were urged in support of the petitions. The court dismissed them, and its judgment was affirmed, on their appeal, in this court, in the well known case of Satcher v. Satcher, 41 Ala. 26. The judgment of affirmance has been often quoted as authority, and more uniformly approved by the bench and bar, than any other in our reports on the matter of setting aside decrees for the sale of decedents' land, so prolific of litigation. It is now pleaded in bar of the present suit. The only difference between this case and that is the allegation of fraud, in the place of want of jurisdiction. Ordinance No. 40 of the convention of 1867, "To allow widows, orphans, and others, to review the validity of sales and settlements of estates made by guardians, trustees," &c., is invoked by the counsel of the appellee, as additional authority for instituting the present suit. This ordinance seems to have contemplated some action of the legislature to make it operative. It begins by reciting, "That it shall be obligatory upon the [Balkum v. Satcher.] legislature to pass such laws as may be necessary to authorize and direct the courts of probate, courts of chancery, and all other courts of this State, to reëxamine and review all decisions heretofore made, in cases in which the validity of sales of persons acting in a fiduciary capacity, &c., of property for Confederate bonds, treasury-notes, or other securities, has been passed on," &c. "Provided, such petition shall be filed within three years from this date; except in the case of minors and married women, who may proceed by petition within one year from the removal of the disability of marriage or infancy," &c. The legislature has never passed any laws in obedience to this ordinance, probably because Ordinance No. 39 of the same convention was deemed sufficient for the ends of justice, in its greater compass and shorter duration. Besides this, the review or reëxamination was designed to be in the court where the decision was rendered. We decide that Ordinance No. 40 is inoperative proprio vigore. There is not the least evidence of a fraudulent intention on the part of the administrator of Herrin M. Satcher, or of the probate judge who confirmed the sale to himself, and ordered titles to be made, or of any of the other purchasers. Every fact established was passed on by this court in the decision above mentioned, and was declared insufficient in itself to invalidate the sale. If so, all of them combined would not prove fraud of intention. They are not of a nature to have such effect. No concealment or deception was practised. The answers of the defendants, and the testimony in their behalf, seem to be without reserve. They acknowledge the payment of the purchase-money in Confederate currency. This is the chief ground of complaint, and it was of too frequent practice in those days to be regarded even as a badge of fraud. The counsel on both sides refer to a question of enforcement of the vendor's lien, as entering into the consideration of the case. The bill is not framed for such a purpose, and no relief of that sort is asked or granted. The relief prayed for and obtained is repugnant to it. VOL. LI. The decree is reversed, and the cause remanded. [Brock's Administrator v. Frank.] Brock's Administrator v. Frank. Statutory Real Action in Nature of Ejectment. 1. What law governs succession and testamentary disposition of property. - At common law, the succession to the personal property of an intestate, or the validity of a testamentary disposition of it, was governed by the law of the owner's domicile at the time of his death; while that of real property was governed by the law of the place where it was situated. 2. Probate of will; conclusiveness of. The probate of a will, whether of real or personal property, or of both, if decreed by a court of competent jurisdiction, is a judgment in rem, and, in the absence of statutory provisions, is conclusive on all the world, as to the capacity of the testator, and the due execution and validity of the will. 3. Probate of foreign will. — Under the statute of this State (Rev. Code, § 1949), if the testator was not domiciled here at the time of his death, and his will has been probated in another state or country, it may be admitted to probate here, on the production of a copy of the will and its probate, duly certified as required by the statute; but this statute, construed in connection with the former statute which it superseded, and with the general law which would prevail in the absence of all statutory provisions, does not authorize a contestation of the validity of such will, when offered for probate here. 4. Executor's powers before probate. The rule of the common law, which allowed an executor, before probate of the will, to do nearly all the acts which he could rightfully do after probate, except the institution and prosecution of suits, is inconsistent with our statutory provisions, and does not prevail here. 5. General grant of administration after probate of foreign will. — A will having been admitted to probate in common form in South Carolina, where the testator was domiciled at the time of his death, and afterwards probated in solemn form, on an issue devisavit vel non between the executor and heirs; a general grant of letters of administration in Alabama, by the probate court of a county in which a certified copy of the will and its probate in common form had been filed and recorded, made after the probate in solemn form in South Carolina, but before its admission to record here, is not void, but is to be treated as a grant of administration with the will annexed. Where the 6. Sale of decedent's lands, by order of probate court, for division. testator's will confers on his foreign executor power to sell his lands in this State for division among the legatees, and the will and its probate have been admitted to record here, the power of sale may be exercised by an administrator with the will annexed, appointed here (Rev. Code, § 1609); and in such case, the probate court has no jurisdiction to order a sale for division among the heirs. APPEAL from the Circuit Court of Calhoun. Tried before the Hon. WM. L. WHITLOCK. This action was brought by William M. Hames, as the administrator with the will annexed of Lawrence Brock, deceased, against Isaac Frank; and was commenced on the 24th February, 1871. The defendant pleaded, "in short by consent, the general issue, with leave to give in evidence any matter that might be specially pleaded;" and the cause was tried on issue joined on that plea. The lands in controversy were certain town lots in Jacksonville in said county, which had belonged to said Lawrence Brock at the time of his death, and which the defendant held and claimed under a purchase at a sale made on the 23d March, 1863, by John Brock, as the administrator of said Lawrence Brock, under an order of the probate [Brock's Administrator v. Frank.] court of said county. Lawrence Brock died in Greenville district, South Carolina, where he resided, in 1859, having executed his last will and testament, which was attested by three witnesses, and which contained, among other things, a clause authorizing his executor to sell all his lands in South Carolina, Georgia, and Alabama, and make titles to the same, the proceeds of sale to go to his residuary legatees. This will was "proved in common form," by the oath of one of the subscribing witnesses, in the court of ordinary of Greenville district, South Carolina, on the 22d day of April, 1859, and there recorded; and a copy of the will and this probate, duly certified as required by the statute, was filed and recorded in the probate court of Calhoun county, on the 8th day of June, 1859. On the 11th July, 1859, John Brock, who was a brother of said testator, filed in said probate court of Calhoun his petition asking the grant of special letters of administration to himself. The petition alleged the death of the testator in South Carolina, as above stated; that he left "considerable property, real and personal, in said county, unadministered, which requires the care of an administrator to prevent waste;" that a paper "purporting to be the last will and testament of said Lawrence Brock, and to be probated in Greenville district, South Carolina," was filed in said probate court as above stated; that no person in Alabama had applied, "as legatee or otherwise under said will," to administer on said estate on Alabama, and that more than thirty days had elapsed since said paper had been thus filed and recorded. The petitioner further alleged, on information, that the testator's heirs had instituted, or were about to institute, before the proper court in South Carolina, legal proceedings to attack said will on the ground of fraud; and he declared that he did not intend, by his said petition, to admit the validity of said will. The probate court granted special letters of administration as prayed, under which said John Brock acted until February, 1862, when he made a final settlement, and resigned. In South Carolina, in the mean time, the executor being required to prove the will in "solemn form, or due form of law," at the instance of said John Brock and others, who filed a caveat against its probate, an issue devisavit vel non was formed between them and the executor, which was tried before the court of ordinary of Greenville district, and decided in favor of the will; and on appeal to the court of common pleas, a trial de novo was had, and again decided in favor of the will, and it was admitted to probate in solemn form in July, 1860. A copy of these proceedings, duly authenticated, was filed in the probate court of Calhoun county, on the 10th of April, 1862, accompanied by a petition asking that the same might [Brock's Administrator v. Frank.] be admitted to probate as the last will and testament of said Lawrence Brock; and the court thereupon appointed the 23d day of May, 1862, for the hearing of the petition, and issued notice to the heirs to appear, if they chose, and contest the probate. On the 23d May, 1862, a caveat against the probate was filed by one of the heirs, and the application was thereupon continued, from term to term, until the 9th March, 1863; after which time no action was taken in the matter, until some time in 1866 (the exact date not being shown in the record), when the probate was allowed. But in the mean time, on the 8th March, 1862, said probate court of Calhoun granted general letters of administration on the estate of said testator to John Brock; and on the 5th February, 1863, on his petition, granted an order to sell the real estate, as in case of intestacy, for the purpose of making distribution among the heirs. The sale was made as required by the order, the defendant becoming the purchaser; and was reported to, and confirmed by the The purchase-money was paid in Confederate currency, and the purchaser received a deed under the decree of the court. court. The above being all the evidence in the case, the court refused to charge the jury, as requested by the plaintiff, "that they must find for the plaintiff, if they believed the evidence; and instructed them, ex mero motu, that they must find for the defendant, if they believed the evidence. To the charge given, and to the refusal of the charge asked, the plaintiff excepted, and he now assigns them as error. JNO. T. HEFLIN, for the appellant.-1. The legal title to the lands being in the plaintiff's testator at the time of his death, the plaintiff was entitled to recover, unless the defendant showed a better title. Golding v. Golding, 24 Ala. 122. 2. Lawrence Brock being domiciled in South Carolina at the time of his death, and his will being there admitted to probate, by a court which had full jurisdiction of the subject, and that probate being duly admitted to record in the probate court of Calhoun county, Alabama, the grant of letters of administration by that court to John Brock was absolutely void. Said probate court had no jurisdiction over the estate, except under the will, and everything done under said appointment was also void. Being void, the proceedings may be collaterally assailed. 1 Rolle's Abr. 919; 1 Comyn, 150; Wyman v. Campbell, 6 Porter, 219; Mosely v. Tuthill, 45 Ala. 642; Starbuck v. Murray, 5 Wendell, 148. 3. The administrator, acting in a fiduciary character, had no authority to receive Confederate currency. Shurer v. Greene, 3 Coldw. 419; 1 Heiskell, Tenn. 150; Eastern Bank v. Tay |