McMekin v. Bobo

12 Ala. 268

• Court: Supreme Court of Alabama
• Decided: June 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

It is declared by the act of 1806, that the goods and chattels, or personal estate of any person deceased, whether testator or intestate, shall stand chargeable with the payment of all the just debts and funeral expenses' of the deceased, and the charges of settling the estate ; and after payment thereof, in case of intestacy, shall be distributed. If the personal estate is insufficient to pay the debts,, then the real estate shall be chargeable with the deficit, [Clay’s Dig. 191, § 1.] The act of 1822, provides that it shall be lawful for an administrator, for the purpose of paying debts, or to make more equal distribution among the heirs, to file a petition in the orphans’ court of the county in which letters of administration have been granted, setting forth that the personal estate of the intestate is not sufficient for the payment of the just debts of the intestate; or that the real estate of the intestate cannot be equally, fairly and beneficially divided among the heirs, without a sale of the same, setting out and particularly describing in such petition, the' estate proposed to be sold, and the names of the heirs and devisees of such intestate, &c. [Clay’s Dig. 224, § 16.] By a statute passed in 1828, it is provided that, whenever an administrator shall fail to apply to the orphans’ court for the sale of the real estate of his intestate, for the purpose of paying the debts, the judgment creditor, upon fifing a suggestion in the clerk’s office in which the judgment shall have been rendered, that real estate has descended to the heirs, and that a sale of the same or some part thereof, is necessary for the satisfaction of such judgment, and that the administrator has failed or refused to make application for the sale thereof, &c. may sue out a scire facias against the administrator and heirs, returnable to the next term, &c. requiring them to show cause why the plaintiff should not have execution against the real estate; and if sufficient cause to the contrary be not shown, execution shall be awarded against such estate : Further, if an administrator shall fail to apply for leave to sell real estate three months after reporting the estate insolvent, he shall be deemed guilty of a devastavit, and may be sued on his' bond, together with their sureties. [Clay’s Dig. 197, § 27.]

In Thrash v. Sumwalt, 5 Ala. Rep. 13, it was said that “ an administrator is bound to a creditor of the intestate, in consequence of the assets which come to his hands to be administered ; and a distributee has no claim whatever, until the demands of all creditors are satisfied or legally barred.” He cannot, therefore, discharge himself or the assets from liability to the creditors by a premature settlement with the distributees, or by a decree of the orphans’ court directing distribution. To the same effect, is Dean, et al. v. Portis, Judge, &c. 11 Ala. Rep. —-.

In the case at bar, the record establishes that the personal estate of the intestate was ample for the payment of its debts; that the first administrator, within two months and a half after his appointment, filed his account and vouchers for a final settlement, and that in little more than four months, the account was allowed, and a decree rendered distributing the personalty. In about eleven months after the settlement,, and distribution, the defendant in error was appointed an adm’r tie bonis non. It may well be asked under this state of facts, if the personal estate was insufficient to pay the debts. If it was not, where was the necessity for selling the lands, and does the act of 1822, furnish an authority for the decree of the orphans’ court ? Does the premature settlement and distribution discharge the first administrator and his sureties-from liability to creditors ? We merely state these questions, but do not propose to answer them, as we can rest our judgment upon another ground.

The fourth section of the act of 1822, above cited, provides, that the orphans’ court shall not order a sale of the real estate described in the petition, where the allegations are denied by the answer, unless satisfied by proof to be taken by deposition as in chancery cases, and filed in the cause.— [Clay’s Dig. 225, § 19.] In Hill and another v. Hill, adm’r, 9 Ala. Rep. 793, we said this provision was too explicit to leave room for doubt as to its true meaning ; that it required depositions.to be taken and filed, as in suits in chancery. It was not enough, that the decree recited, it appeared to the court by “ interrogatory,” that the personal estate of the intestate Avas insufficient to pay the debts with which it was chargeable, where the record contained no depositions, did not account for their absence, or show that any had been taken.

In the case before us, there was but one deposition taken to sustain the allegations of the petition. The answer of the heirs explicitly denies that there is any indebtedness which .makes it necessary to sell any part of the real estate of the intestate ; insists that the will, in respect to which the witness Trimble testifies, was not written, but attempted to be established as a nuncupation ; and as such, cannot affect or charge the lands. The costs, Avhich the witness testifies are due, accrued on the probate of this will; and the answer avers that the validity of the same is now controverted by suit in chancery, and offers to exhibit the papers in the cause.

Even if land passed by a nuncupative will, or could be charged by it with the payment of legacies, [Hilliard and wife v. Binford’s heirs, &c., 10 Ala. Rep. 977,] it may be remarked, that the statute cited, does not authorize the or-* phans’ court to order the sale of real estate for the payment of a legacy; and if it did, the petition does not ask it for that purpose.

Can real estate be sold for the payment of the costs consequent upon the probate of a nuncupative will ? Whatever answer this question may receive, we think these costs can not, while the probate is in litigation, be considered a debt for which the lands of the estate may be sold under an order of the orphans’ court.

The proof in regard to the indebtedness of the estate by note, is not sufficient; especially where the answer denies the gravamen of the petition. The witness knows nothing of the genuineness of the note, but merely states that there is a claim purporting to be a note of the deceased, in favor of whom he does not know, in the hands of an attorney for collection, and that suit has been brought thereon against the administrator de • bonis non• The decree on the petition merely states in addition, that this note was produced in the orphans’ court. If the positive testimony of one witness was sufficient to outweigh the answer as to the fact of indebtedness, it might be objected to the deposition in the present case, that it does not affirm that the note is genuine, or state any thing as to the liability of the estate of the deceased to pay it. The fact that the note was produced in court, if it be proved by the recital, does not aid the deposition; for taken alone, or in connection with the deposition, it does not show a charge upon the estate. This much should have been shown by proof, which would be satisfactory, where there was. a negative answer in a chancery cause.

Without stopping to consider the other questions raised at the argument or by the answer, we think the proof too defective to sustain the decree.

The decree is therefore reversed, and the cause remanded.