1. PLEADING.
Where bill to remove administrator alleged that decedent had died a resident of a different county, for purpose of demurrer, court was required to accept as true that decedent was a resident of a different county and that the granting of letters of administration was erroneous (Code 1932, sec. 8144).
2. EXECUTORS AND ADMINISTRATORS.
The granting of letters of administration by the county court of Davidson county with respect to the estate of one who died a resident of Williamson county was not a void act, and letters, upon proper application and showing, could be revoked by Davidson county court; hence person interested in estate and who desired probate in Williamson county had an adequate and speedy remedy at law in Davidson county court and was not entitled to relief in chancery by bill to remove administrator and declare void the proceedings in Davidson county court (Code 1932, secs. 8144, 10225(2)).
3. EXECUTORS AND ADMINISTRATORS.
The original jurisdiction of county court over matter of revoking erroneously issued letters of administration is general and exclusive, and chancery court is without power, as a court of original jurisdiction, to revoke such letters and has no revisory jurisdiction to correct voidable errors of county court in such a matter, since that could be done only by appeal to a court with appellate jurisdiction in such matter (Code 1932, secs. 8144, 10225(2)).
FROM DAVIDSON.
MR. SPECIAL JUSTICE PRIDE TOMLINSON delivered the opinion of the Court.[fn*] [fn*] Sitting for Chief Justice Grafton Green.
The County Court of Davidson County issued to American National Bank letters of administration on the intestate estate of Emmett Bellenfant. Its actions was predicated upon a sworn petition stating that Bellenfant had died a resident of Davidson County. Approximately fourteen months thereafter, appellant, who had a substantial interest in the estate, filed his bill in Davidson County Chancery Court. The bill alleged that deceased had never been a resident of Davidson County and died a resident of Williamson County. The prayer of the bill is that the chancery court decree the proceedings in the county court to be void and remove the administrator appointed by that court.
The administrator and other defendants demurred to this bill on the ground that complainant has a plain, adequate and speedy remedy in the County Court of Davidson County. This demurrer was sustained and the bill dismissed. Therefore, on this appeal from the action of the chancellor in dismissing the bill on demurrer it must be accepted as a fact that the deceased was never a resident of Davidson County and that the granting of letters of administration in that county was erroneous, since it is provided by Section 8144 of the Code that letters of administration shall be granted in the county where the intestate had his usual residence at the time of his death.
However, the granting of these letters of administration was not a void act. Franklin v. Franklin, 91 Tenn. 119, 128, 18 S.W. 61. They may upon proper application and showing be revoked by that county court which ordered their issuance, this power of revocation being vested in that court by Section 10225(2) of the Code. This appellant did, therefore, have available to him a clear, adequate and speedy remedy in the court which issued the letters for the wrong which his bill alleges, and for all the relief for which his bill prays.
The county court of Davidson County is vested by said Code Section 10225(2) with original jurisdiction of the matter of revoking these erroneously issued letters of administration. That original jurisdiction is also a general and an exclusive jurisdiction. Brien v. Hart, 25 Tenn. 131. The chancery court is without power, therefore, as a court of original jurisdiction to revoke these letters of administration. It has no revisory jurisdiction to correct or relieve the voidable errors of the county court in this matter, since that may be done only by appeal to a court with appellate jurisdiction in such matter.
The above stated conclusion was reached in the early case of Wilson v. Frazier et al., 21 Tenn. 30. In that case, the Granger County Court had granted letters of administration to McKinney. The Jefferson County Court had granted such letters in the same estate to Mrs. Wilson. She then filed her petition for certiorari in the Circuit Court of Grainger County, asking that court to revoke the letters issued by the County Court of Grainger County. There had been no appeal to the circuit court from the action of the Grainger County Court in granting the letters. The Supreme Court in holding that the circuit court did not have original jurisdiction said: "There must be a dispute and contest on the subject in the court of probate to confer on the circuit court jurisdiction over the matter by appeal or certiorari. If, when the grant of administration was made to the defendants by the county court, the plaintiff had presented her claim, she could have taken her case to the circuit court by appeal or certiorari, according to the circumstances. Not having done so, the proceedings to repeal the letters once granted must originate in the county court. Without this, the circuit court has no jurisdiction over the matter." In Johnson v. Gaines, Executor, 41 Tenn. 288, 289, this Court held as follows: "The paper having been admitted to probate in the County Court of Sullivan, that probate must stand until revoked or vacated by that court, or reversed by the proper appellate tribunal, upon appeal or writ of error. 1 Meigs's Dig. Sec. 48, 54, 55. Assuming the facts to be as alleged in the petition, application should have been made to the County Court of Sullivan to have the probate vacated and annulled, and upon refusal to do so an appeal or writ of error might have been prosecuted to the Circuit Court of Sullivan." In the case of Townsend v. Townsend, Executor et al., 44 Tenn. 70, 80, 94 Am. Dec. 185, this Court held the chancery court to be without jurisdiction in such a matter, and said: "The paper having been thus admitted to probate in the County Court of Sumner County, that probate must stand, until revoked or vacated by the county court in which it was probated, or reversed by the proper appellate tribunal, upon appeal, or writ of error." In Eller v. Richardson, 89 Tenn. 575, 579, 15 S.W. 650, 651, this Court again so held saying: "It is true that the county court of the county in which the deceased resided (if he had a residence in but one county), was alone authorized to grant letters of administration upon his estate. Code, sec. 2202. But the place of his residence was a matter for the determination of the court in which the application for letters was made. The letters in the present case were granted by the county court of Trousdale county; hence, that court must have found, as a matter of fact, that the decedent resided in that county. Its judgment is binding on all the world, until reversed on direct attack; that is, on appeal or writ of error, before the proper appellate tribunal."
The cases above cited have never been in any way modified. They seem to be conclusive against appellant on the question presented by this appeal, and they apparently are in accord with the prevailing rule on the question as declared by other jurisdictions.
The textwriter in Ruling Case Law expresses it this way: "It is generally held that the power to remove an executor or administrator is vested exclusively in the Courts of probate and that equity has no jurisdiction." R.C.L. Perm. Supp., p. 2881, sec. 95.
The assignments of error must, therefore, be overruled. The decree of the chancellor is affirmed and costs of the appeal are adjudged against appellant, and the sureties on the appeal bond.