Mayer v. Kornegay

50 So. 880, 163 Ala. 371, 1909 Ala. LEXIS 531

• Court: Supreme Court of Alabama
• Decided: November 10, 1909
• Status: Published

Opinion

MAYFIELD, J.

This is a. statutory action in the nature of an action of ejectment, brought by appellant, as administrator, against appellees, the heirs of the intestate, to recover the lands of such intestate. The case was tried by the court without a jury on an agreed statement of facts, which the reporter will set out in the report of this case. The court rendered judgment for the heirs, and against the personal representative. From that judgment the administrator appeals.

An administrator may, in certain cases, as provided by statute, maintain ejectment against the heirs or strangers to recover the lands of his intestate." However, he can only maintain such action when necessary for the purpose of administration. He can only recover against the heirs by showing the necessity, and such state of facts as is provided by statute. He has no estate in or title to the lands. He only has the right and power, given exclusively by statute, to intercept the rents in certain cases for certain purposes, and to recover the lands for this purpose, and to sell the same if necessary to pay debts of decedent, or he may, in certain cases, sell for distribution among the heirs. He cannot recover the lands from the heirs, who are the legal owners, whatever may be his rights as against strangers, without showing the necessity, or the contingency, or the happening of the event for which the statute authorizes him to maintain such action. Without this necessity or contingency provided for, he is a trespasser as against the heirs in attempting to assume to control the lands.

Debts of the decedent are not necessarily a charge upon the lands. The debts may be barred by the statute of limitations, or the lands may be exempt from such debts. The debts contracted by the administrator are never a charge upon the lands. They must be debts incurred by the decedent, and they must be in excess of the value of the personal property. . The lands cannot be applied to the debts- of the decedent so long as there is personal property sufficient to pay the debts.

The burden of proof is upon the administrator to show the necessity, or to bring himself within the conditions or provisions of the statute. While it is shown by the'statement of facts that “the estate of decedent OAves debts,” it is not shown that the debts are such as to be a charge upon the lands. They may have been incurred by the administrator, or may be barred by the statute of limitations. It is not shown that they are a charge upon the lands.

It also appears that it had been already judicially determined by the probate court of the proper county that these debts were not a charge upon the lands; that the lands could not be sold for the purpose of paying the debts. The probate court, for this purpose, is one of competent and full jurisdiction, and its judgments or decrees on this subject, if not appealed from, are final and conclusive as to this question.

All the questions involved in this case are discussed and decided in the cases of Lee v. Downey, 68 Ala. 101; Banks v. Speers, 108 Ala. 444, 16 South. 25, and Owens v. Childs, 58 Ala. 113. On these authorities, and what is said above, the judgment must be affirmed.

Affirmed.

Dowdell, C. J., and Simpson and McClellan, JJ., concur.