48 So. 598 | Ala. | 1909
This appeal arises from an order entered for the sale of real estate, upon application of personal representatives, to pay debts of the estate of the decedent. Motion to dismiss the appeal is made by appellee upon the ground that the appeal was not effected in 30 days, as required by section 158, subd. 6, Code 1896. That subdivision, so far as necessary to quote, reads: “Upon any issue as to the insolvency of an estate, and upon any issue as to any alloAvance of any claim against insolvent estates, in which cases the appeal must be taken within thirty days after the determination of such issue.” The proceeding at hand itself negatives the existence of any issue of insolvency, as stated in the quoted subdivision. That subdivision has reference only to decrees or orders in a proceeding looking to the adjudication of the insolvency of estates; and the allusion in the subdivision to the allowance of claims in insolvency proceedings has reference to contests of claims in accordance with section 313, Code 1896. The motion to dismiss the appeal is denied.
The. jurisdictional averments in an application by a personal representative to sell lands of the decedent to pay debts are “that there are debts of the intestate to
Included in the list of debts of the intestate, presented for payment by Mrs. Hunt and Mrs. Yaughan as- the only heirs of Mrs. Hutchinson, deceased, who, it is alleged and proven without dispute, paid them, Avas one to Rr. Evans for medical attention to decedent, amounting to about $48, and one to Gunn for coffin, amounting to about $22, aggregating upward® of $70. There can be no question of the liability of the estate of the decedent to reimburse Mrs. Hunt and Mrs. Yanghan for these debts so paid by Mrs. Hutchinson. Another item of alleged indebtedness, embraced in the presented claim of Mrs. Hunt and Mrs. Yaughan, is a note for $1,500, alleged to have been executed by decedent to Mrs. Hutchinson some years. Against this item the appellants directed their insistence as being a true item of charge on the estate of decedent; and the grounds of thisinsistence were stated to be that the decedent was at the time the note Avas executed mentally incapable of contracting, that the note had been paid, and that there was no consideration for it. The major portion of the errors assigned are predicated upon rulings below in the admission or exclusion of proposed evidence bearing on these issues affecting the validity of the note as a charge on the estate and on the allowance or disallowance of interrogatories seeking testimony touching such issues.
The indebtedness being at least $70, the only point of controversy important, in our view of the case, is the value of the personal assets, including what such assets were. The decree of sale appealed from rests the finding of the fact, viz., the insufficiency of the personal assets to pay the debts of the estate, upon the testimony of Eliza Borum, James McDonald, Mike Morgan, Preston Slater, and Mrs. E. H. Hunt. Mrs. Hunt was the administratrix of the estate, and was hence not a disinterested witness, within the meaning of sections 164 and 167 of the Code of 1896. — Stevenson v. Murray, 87 Ala. 442, 6 South. 301. But to her competency as a witness in the proceeding no objection was made by the contestants on the hearing, nor, of course, is there any error assigned upon such competency of the personal representative to
It affirmatively appears here that all parties in interest are adult and are known, and presumably are of sound minds. Hence, the condemnation for nonobservance of the requirements of Code 1896, §§ 164, 167, does not apply. This quotation from Thompson v. Boswell, supra, may be here aptly made: “Moreover, where the interests of minors [and, we may add, persons of unsound mind or unknown parties in interest] are not involved, a sale ordered upon a petition stating the jurisdictional facts would not be absolutely void, though no proof of the necessity therefor were made in the probate court.” Of course, on appeal, properly presenting the matter for reveiw, reversal would result from the nonobservance of the statutory requirements for proof of the essential facts in such proceeding as the sale of lands to pay debts of the estate. In Alford v. Alford, 96 Ala. 387, 388, 11 South. 317, treating the statutes in question, it was said: “Debts being proved by evidence not rendered incompetent by other provisions of law, the further fact that the personal property of the estate is insufficient for the payment of such debts must be proved by the depositions of disinterested witnesses. The object of the stat
From the interpretation of the statutes in hand it necessarily results that the personal representative is a disinterested witness in respect of the character and identity of the personal property of the estate, but that he is not such disinterested witness upon the question of value of that property. This is rational. The personal representative is presumably, from the duty made his by statute, best favored to know the personal property belonging to the estate. He is required to make out and file in the probate court an inventory thereof, in keeping with his duty to ascertain and collect the assets of the estate. — Miller v. Miller, 124 Ala. 434, 26 South. 892, holds that a creditor is a disinterested witness, in a proceeding to sell lands, within the provisions of Code 1896, §§ 164, 167. Upon the filing of a proper petition by a personal representative to sell lands for the payment of debts of the estate a proceeding in rem is insti tuted; and, when parties in interest appear and contest the application, the proceeding takes on the added quality of a proceeding in personam. — Davis v. Tarver, 65 Ala. 98.
In .view of the foregoing considerations, it must result, we think, that the failure to object to the competency of the administratrix to testify as to .the value of the personal property of the estate operated a waiver thereof. There is, hence, on this record, no reversible error presented on that score.
The witness McDonald, it appears from his deposition taken on interrogatories, testified r “I know that Jas. L. E. England owned at the time of his death one cow and calf, and do not know of any other personal property .owned -by him- * * ? In my judgment the per
There Avas abundant testimony, from the witnesses named in the decree, to support the court’s finding of facts. But additional personal assets were undertaken to be shoAvn by way of testimony tending to prove a large income to intestate and his frugal habits, and that this income, including rents and crops from lands owned by intestate, were received and appropriated by Mrs. Hutchinson duing intestate’s lifetime. Such testimony could be, on the issue, only negative in character, and against the positivee testimony from other witnesses, besides the personal representive, of the existence of only a cow and a calf as personal assets, such negative testimony cannot prevail.
It was not contended that the personal representative received any of the income of the intestate during his lifetime; but the effort was directed to tracing into the hands of Mrs. Hutchinson, deceased at the time of the hearing, income and Crops, by mere proof that intestate had an income,etc., and that she appropriated them. However frugal intestate’s habits may have been, we cannot, bn this alone; reverse the finding below upon the
There is no prejudicial error in the record, and the decree of sale is affirmed.
Affirmed. ■