BKECKELL, C. J.—
1. An application to a court of probate for an order to sell lands of a deceased person for the payment of debts, made by the personal representative, when collaterally assailed, is regarded as a proceeding in rem, and jurisdiction of the thing, not of persons, is the controlling element of its validity. But when the regularity of the proceeding is presented on error, or Toy appeal, it is regarded as in personam. In form it is strictly a proceeding inter partes, the personal representative standing as plaintiff, and the heirs or devisees, as defendants. These are the only parties—the creditors who may have claimed, are not parties • or privies—the decree rendered is not binding on them; neither establishes the validity, or invalidity of the claims. At common law they would be competent witnesses in the proceeding, not having an immediate interest in its' result, .and the decree not operating as evidence for, or against them. The statute now removes all objection to the competency of witnesses, except that in suits or proceedings by or against executors or administrators, a party is not allowed against the objection of his adversary to testify to any statement by, or transaction with, the deceased person whose • estate is'interested.—Code of 1876, § 3058. The objection to the competency of Daniel as a witness, testifying to transactions with, or statements made by the intestate, was not well taken. He was not a party to the proceeding, and of monsequence not within the statutory exclusion.
.2. An application for the sale of lands may be contested [516]*516by any party interested.—Code of 1876, §2453. The bur-then of proof of the necessity for the sale, (the insufficiency of the personal property for the payment of debts), rests on the personal representative, whether there is a contest of the-application or not, and it is evidence of this fact which he must show by depositions. Proof by depositions is limited to this fact, and to the evidence of it, which he must offer of necessity. On the contest when it arises, the contestants may by oral evidence controvert the facts stated in the application. The general law is, that “all testimony, except as otherwise directed, must be given in open court on the oath or affirmation of the witness.”—Code of 1876, §3057. The court erred in excluding the evidence offered by the contestants, tending to show that the name of the intestate as it appears signed to the note payable to Daniel, was not in the handwriting of Ellen Garrett, and showing in whose handwriting was the signature. It was not a controverted fact, that the intestate had not in person signed the note. Its genuineness and validity as a debt against her, depended on the facts proved by Daniel, that she had authorized Ellen Garrett to sign the note, and that after the signature by Ellen, the intestate had affixed her mark. These facts were disproved by Ellen, and it was competent to corroborate her by evidence, that the signature was not in her handwriting, and by evidence showing in whose handwriting it was in fact. If the evidence had been admitted, the existence of a-debt would not have been sufficiently proved, and a decree of sale should not have been rendered.
Beversed and remanded.
Stone, J., not sitting. Free access — add to your briefcase to read the full text and ask questions with AI