Mays v. Rogers

52 Ark. 320

• Court: Supreme Court of Arkansas
• Decided: November 15, 1889
• Status: Published

Opinion

Per Curiam.

Administration: Sale of land. Where there are no debts due by a decedent, there can be no sale of lands of his estate to pay the expenses an administration had thereon. If the admininistration is continued after the debts are paid, as in the case of Smiley v. Stewart, 46 Ark., 373, it would be error to order a sale of lands to pay the costs of the subsequent administration. To what extent the right to resort to the lands for the sole purpose of paying the expenses of administering the estate is limited, has not been fully argued by counsel, and is not now determined. In every case, however, where an application is made to sell lands solely for the expense of administering the estate, it must be made to appear that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent. Mansf. Dig., secs. 170 and 171. See cases cited at sec. 468, 2 Woerner Am. Law of Admrs.; 3 Wms. Ex.* 2041, N. A.

The cause was heard by the Circuit Court upon the administrator’s petition to sell, an exhibit thereto, and the remonstrance of the heir, without proof; and the essential fact referred to does not appear therefrom. The other questions argued by the appellant are not presented by the facts as set forth in the record.

For the error pointed out the judgment is reversed, and the cause remanded for further proceedings.