Flowers v. Reece, 92 Ark. 611

Flowers v. Reece

92 Ark. 611 | Ark. | 1909

Lead Opinion

Hart, J.,

(after stating the facts.) This case is ruled by the case of Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81. In that case it was held (quoting syllabus) :

1. “Under Kithy’s Digest, § 186, providing that 'lands and tenements shall be assets, in the hands of every executor or administrator for the payment of debts of the testator or intestate,’ if there are no debts due by the decedent, there can be no sale of his real estate to pay expenses of administration thereon, unless it appears that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent.

' 2. “While the probate court is a superior court, its judgments are void if they show on their face that the court was acting beyond its jurisdictional limits.

3. “An order of the probate court for the sale of lands of an estate which shows on its face that it was made to pay expenses of administration, and not debts of the decedent, without showing that the expenses of administration were incurred in the course of administering the estate to pay debts due personally by the decedent, is void, and no rights' were acquired under it, although the sale was afterwards confirmed.”

In the present case the assignee of the widow of decedent was allotted dower in the proceeds arising from a sale under a foreclosure of a mortgage made by King B. Flowers in his lifetime, which were in the hands of his administrator. Certain costs were also allowed the assignee of the widow in the suit for the allotment of dower. The order of sale affirmatively shows that it was made for the purpose of paying these amounts. It was not a sale to pay debts or to pay expenses of administration incurred in the course of administering the estate to pay debts due personally by the decedent. Hence it was void, and the purchasers at the sale acquired no rights under it. It follows that there was no 'consideration for the .bonds, and that the court erred in sustaining the demurrer to the answer and cross-complaint.

Opinion delivered December 6, 1909.

For this error the decree is reversed, and the cause is remanded with directions to overrule the demurrer, and for such other proceedings not inconsistent with this opinion as the parties in equity are entitled to.

Rehearing

ON REHEARING.

Hart, J.

1. Counsel for appellee insists that the court erred in holding that the judgment of the probate court ordering a sale of the real estate, belonging to the estate of King B. Flowers, deceased, showed affirmatively that the court was acting beyond its jurisdictional limits, and that the judgment was therefore void. A majority of the judges think the contention is well taken. Both the judgment of the probate court and the petition upon which it was procured are set out in the abstract of the record; but they contain a long and almost interminable recitation of matters pertaining to the administration which have no relation to the jurisdiction of the probate court to order a sale of the lands in question. For this reason it will not be set out herein. It is sufficient to state that we have again carefully read and considered both the petition and the judgment of the probate court, and have come to the conclusion-that the judgment does not show on its.face that it was made for the sole purpose of paying the costs incurred in the administration of the estate. On the contrary, the court is of the opinion that the judgment on the face shows that a part of the surplus from the foreclosure of the White mortgage, which was decreed to the assignee of the widow in the proceedings to allot dower, was used by the administrator in payment of debts probated against the estate of his decedent, and that the order of sale was made for the purpose of reimbursing the administrator for the amounts so paid, and also for the purpose of paying other debts probated against the estate. In the case of Crowley v. Mellon, 52 Ark. 1, the court, speaking through Chief Justice Cockrill, said: “In so far as the administrator has paid a debt of the estate with assets which he is compelled to refund to the widow, he will be subrogated to the rights of the creditor of his intestate, and may resort to any remedy the creditor would have against the assets of the estate that remain unadministered.” See also Wells v. Fletcher, 17 Ark. 581.

Besides, this is a collateral attack on the judgment. “The probate court is a court of superior jurisdiction, and within its jurisdictional limits its judgments import absolute verity,, the same as other superior courts.” Collins v. Paepcke-Leicht Lumber Co., supra. The rule is that where the record is silent with respect to any fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction. Clay v. Bilby, 72 Ark. 101. Therefore, a majority of the judges are of the opinion that the judgment of the probate court was valid, and that the motion for a rehearing should be granted. Their opinion becomes the opinion of the court.

I agree with the propositions of law laid down by the court, but cannot agree with the conclusions reached. I believe that the petition for the sale of the real estate and the jitdgment of the probate court ordering a sale thereof, while they contain useless and to some extent ambiguous recitations of matters concerning ■the administration, and while they contain some apparent contradictions, may be fairly held to show that the dower in the surplus arising from the foreclosure under the White mortgage was used by the administrator to pay the expenses of administration and not debts of the decedent. In which event the court had no jurisdiction to order a sale of the real estate of the decedent, and such judgment is void.

2. It is contended by counsel for appellant that the land embraced no part of the land attempted to be sold, but they have not sustained their contentions in this behalf. The property was divided into two parts for the purpose of sale, and the description of the two parts is accurate; and, when combined, they make up the whole of the property ordered sold.

The motion for a rehearing is therefore granted, and the decree of the chancellor is affirmed,