— This is а statutory real action, brought by Speers as administrator de bonis non of M. D. Burchfield, deceased, to recover of William Banks et al. lots 7 and 8 in the town of Jasper, Walker county. The plaintiff recovered and Banks appeals.
At the time of M. D. Burchfield’s death a suit was pending against him in Walker county Circuit Court. This suit was revived against S. B. Burchfield, administrator in chief, and in February, 1888, judgment was recovered against him as such administrator for $220. Two other judgments were rendered against said S. R Burchfield as administrator of M. I). Burchfield, before justices of the peace — the two amounting to about $125. These judgments are still unpaid.
On the 2nd day of November, 1891, S. B. Burchfield resigned as administrator, and five days afterwards John Speers was appointed and qualified as administrator de bonis non. On the 27th day of December, 1891, a judgment was recovered against him as administrator aforesaid for $95. There are no other debts of the estate of M. D. Burchfield that are not barred, either by non-claim, or by the statutes of limitation; and there are not shown to be any personal assets remaining in specie. If any personal assets of the estate ever went into the hands of S. B. Burchfield, administrator in chief, or into the hands оf Speers, administrator
We have held that the administrator, as such, is clothed by our statutes with a right to the possession of the realty for purposes of administration, аnd that that right, when asserted by him, dominates and intercepts the descent of the lands to the heir. — Calhoun v. Fletcher,
It is, contended for appellant, that by suffering judgments to go against them in their representative capacity on debts of their intestate, M. D. Burchfield, both the administrator in chief and the administrator de bonis non must be held to have admitted that the estate had assets sufficient to pay those debts; that this, as against them, is a conclusive, presumption, and that they will not be heard to deny it. The contention takes a further step, and claims that the sureties 'on their bonds are also concluded by those recoveries, and
It is certainly true that the lands of a decedent will not be ordered to be sold for the payment of debts, when there are no debts of the estate to be paid. The existence of debts to be provided for is a jurisdictional inquiry. So, if there be sufficient personal assets to pay the debts, there can be no order for a sale of the lands for thеir payment. — Code of 1886, §2103; Owens v. Childs,
The question, -to what extent a judgment or decree rendered against a personal representative in his representative capacity is binding on him and on his sureties, has been very often considered by this court. It has always been held that such judgment or decree, if permitted tо stand, is conclusive on the principal, the personal representative, of the amount due and owing from him as such representative, and that he has in his hads sufficient assets for its payment. These presumptions he will not be heard to gainsay or deny. As to the effect upon his sureties, a distinction was taken at an early day between decrees rendered against the representative in the Orphan’s or Probate Court, on settlements made therein, and judgments rendеred against him on debts or liabilities of his testator,. or intestate. In cases falling within the first class — decrees on settlements in the Probate Court — it has been uniformly ruled that the sureties were bound and concluded by the decree rendered precisely and to same extent as their principal was bound. — Judge Limestone Co. Ct. v. Coalter, 3 St. & Por. 348; Burke v. Adkins, 2 Por. 236; Slatter v. Glover,
• In suits against the pеrsonal representative to enforce a debt or liability of his testator or intestate, the issue is different. The question in such case is, the decedent’s liability velnon; and the inquiry of assets in the representative’s hands is not one of the issues presented. The recovery is not against the administrator personally, but to be levied of the goods and chattels of the decedent, in his hands to be administered. Hence, in all our early decisions it was held that such recovery did not cоnclude or estop the sureties from denying that the administrator had come into possession of assets with which to discharge the indebtedness. Thompson, Judge v. Searcy, 6 Por. 393; Miller v. Gee,
The case of Grimmett v. Henderson,
We have shown that in this case there are unsatisfied debts against the estate of M. D. Burchfield, which have been reduced to judgment against his personal representatives. If sufficient personal assets, after carving оut of them the widow’s exemptions, were left to pay his debts, the case has not arisen which authorizes the sale of lands of decedent for their payment. — -Code of 1886; §§ 2103-4. In other words, unless a case is shown in which “the personal estate is insufficient” for the payment of the debts, the personal representative is not entitled to an order for the sale of the lands ; nor as we have shown, should he be allowed to re- ■ cover the lands for purposes of administration, when it appears affirmatively that they can not be applied to such purpose.' — Owens v. Childs, and Lee v. Downey, supra. What are the presumptions in such case, and on whom rests the burden of proof ?
Our system for the administration of estates is not a new one. It commenced with the formation of the Mississippi Territory during the early years of this century. It has had steady growth and development; and in declaring rules of practice and procedure to be observed on the presentation of issues not heretofore pronounced upon definitely, we should endeavor, as far as possible, to observe and preserve the harmony of our system as established. Under our statutory system, eighteen months after administration granted are allowed for the presentation of claims: and cases may arise, in which the personal representative can not till the end of those months, determine whether the personal effects will yield enough for the payment of thе debts. Our statutory system authorizes him to intercept the descent of the realty, and to demand and recover the possession, even against the heir. — 3 Brick Dig., 464, §§ 146 et seq.
The suit in the present case was not brought until more than eighteen months after the appointment of the administrator in chief, and we thus meеt the question, does that change the rub, and if so, to what extent? We have shown above how far real estate is made assets of a decedent’s estate for the payment of debts. When, as in the present case, suit for the realty is instituted by the admintstrator more than eighteen months after the appointment in chief, what is the presumption as to the insufficiency of personal assets for the payment of debts? On whom is the burden of proof as to that fact ? We think we give best effect to the harmonies of our system by holding, as we do, that in the absence of all proof on the subject, the bringing of the suit raises the presumption that there was a deficiency of personal assets, and that the real estate was and is necessary to supply that deficiency. We will not, in the absence of proof, presume the personal representative has committed a devastavit, and on that presumption deny to the plaintiff the right to recоver.
The right to sell the real estate for the payment of debts does not necessarily follow from the recovery of the possession of the homestead. To obtain an order to sell the lands, it must be averred and shown that the personal estate was insufficient therefor. If the personal effects, over and above exemptions, have been sufficient to pay the debts, the devastavit suffered by the administrator furnishes no excuse
It is contended for appellant in this case that under our statutory system, the lots in controversy, being the homestead of M. D. Burchfield at the time of his death, is exempt “from administration and the payment of debts, • • • during the life of the widow, or the minority of the child or children, whiсhever may last terminate.” — (Code of 1876, §§ 2821 & 2827: Code of 1886, § 2543); and inasmuch as Mrs. Burchfield, the widow, is still living, the statutes referred to expressly prohibit the sale of the lots during her life time, and no steps can lawfully be taken, looking to such sale.
The exemption in favor of the widow and minor children is only an exemption of the lesser estate — the life estate — as distinguished from, and carved out of the greater estate of the deceased. The exemption is for the benefit, and more quiet enjoyment of the lesser estate. Giving it its largest extent, it was intended to be a quality and constitutional element of the lesser estate, with no intention to impair the greater estate, farther than was considered necessary to a free and proper enjoyment of the lesser. We have no hesitation in affirming that if from any cause the lesser estate fell in or terminated, all its attributes expired at the same time, and with them the property’s exemption from аdministration and from sale for the payment of debts. Whether, when homestead exemption is claimed and set apart to the widow or minor children, it is permissible to obtain an order and sell the remainder in such exempt realty for the payment of the estate’s debts — the personalty being insufficient therefor — or whether that remainder must be left undisturbed until the termination of the exempt homestead right, is a question not raised by this record.
In Barber v. Williams,
At a later date — February 28, 1889 — pamph. Acts 113 — it was enacted “that the widow and minor children or child of any deceased husband or father, who have had set aside to them, or to the widow, or minor children, or child, a homestead of the property of suсh deceased husband and father, under the laws of Alabama, shall not be held to have forfeited the same to the claims of' heirs or creditors, by a .removal therefrom, so long as such widow and minor children, or child, shall continue to reside ■ in the State of Alabama.” A second section of the act provides, “ that the provisions of this act shall apply to homesteads heretofore set apart, as fully as to those set apart hereafter.” It is contеnded for appellant that this statute was simply declarative of what .the law then was, and that its effect was to save the homestead in this case from forfeiture, for the benefit alike of Mrs. Burchfield and her alienee.
If the statute we have copied had been enacted before the sale was made to Banks, we need not and do not decide that such sale and abandonment of the possession would work a forfeiture of the homestead right. On principle it would seem that it should not. Giving the statute such interpretation would, in no sense interfere with vested property rights. When, however, as in the present case, the homestead right had been abandoned and lost before the enactment of the statute, the question is very different. By the sale -and abandonment of possession, all property and right of property in the homestead had passed out of Mrs. Burchfield, and had not passed to Banks, her alienee. It had vested in the heir at law, subject to the qualified right of the. personal representative to claim it for the payment of debts. To allow the statute to retroact and re-vest title in Mrs. Burchfield, or her alienee, would be, by a mere edict
We summarize our conclusions as follows: Subject to homestead exemption and to the rights of quarantine and of dower, lands of a decedent descend to the heir, as at common-law, unless the personal representative asserts his right to possess and control the same for purposes of administration.
Lands being 'made assets for the payment of debts, the personal representative may claim the right to possess and control the same, and his claim, thus asserted, will dominate the title of the heir. If made before the expiration of eighteen months after the estate was committed to administration, the heir is powerless to resist .his claim of possession ; for it can not then be known with certainty that the lands will not be needed for the payment of debts.
If the claim of possession or control is not asserted until after the expiration of eighteen months allowed for ijhe presentatiоn of claims against the estate, then the personal representative has only a prima facie right to the possession. It is met and successfully overcome, if there are no debts or expenses of administration to be paid, or, if there have been sufficient personal assets for these purposes, which have been wasted or misapplied. Even when the personal representative obtains possession of the realty, or, without obtaining such possession, petitions for an order to sell lands for the payment of debts, unless there is a deficiency of personal assets for the purpose, he is not entitled to an order for the sale of the lands. And it requires a deficiency in fact to justify the order of sale. If the deficiency has been brought' about by maladministration, or by a devastavit committed by the personal representative, a case is not made justifying an order of sale. He and his sureties are the parties tо be looked to.
The foregoing rules would not be absolutely applicable to all cases. They are controlling, only when there is neither statutory nor testamentary direction to the contrary.
If the record before us truly sets forth the facts, the sale and conveyance to Banks, made as they were by the widow and all the heirs, vested in him all the title and ownership of the lots, except what may be required to pay the judgments brought to view in the trial below, and the attendant
Affirmed.