83 N.C. 573 | N.C. | 1880
The plaintiffs, administrators of R.N. Watterson, not having personal estate of their intestate to pay his debts, applied to the probate judge for license to sell a tract of land which descended to the defendants his heirs at law. The petition alleges the value of the personal estate to be about $160, and the debts to be some $400, of which half *574 were contracted before the adoption of the constitution of 1868, and that the land proposed to be sold consists of fifty acres worth two dollars and fifty cents per acre.
The adult defendant makes no defence [defense] and the other six infant defendants, by their guardian ad litem, answer admitting the facts charged and asserting their right of homestead in the land and its exemption from sale until the youngest of them arrives at full age. The license as asked was granted by the probate judge, and on defendants' appeal so modified in the superior court as to authorize and direct a sale of the land for the payment of those debts only which were contracted before the homestead exemption was givne [given] by law, and from so much of the modified order as restricts the purposes of the sale, the plaintiffs appeal. The necessity of the sale is apparent, and upon the estimates the proceeds thereof will be insufficient to pay the liabilities of the intestate which are paramount to the right of exemption. It was not therefore at all necessary to anticipate a question that may arise in the probate court upon the settlement of the administration and the distribution of the fund among the creditors, and which was not then before the court.
It is true, if the application had been for leave to sell the land, subject to the homestead encumbrance, for the payment of debts subordinate to that right, it would have been refused under the law as declared inHinsdale v. Williams,
Error. Reversed.