38 Ark. 388 | Ark. | 1882
The motion to dismiss the appeal was properly overruled.
The record of the probate court states that an affidavit for the appeal, as required by law, was filed; which statement is not countervailed by the. fact that such an affidavit was not filed with the other papers in the case in the Circuit Court, and must be taken as true. If such an affidavit had not been filed the record should have been amended, and the transcript in the Circuit Court corrected by certiorari.
The objection to the notice to Grider, because the same was served upon him on Sunday, if valid, as to which we express no opinion, should have been made before the hearing of the petition, and was waived by the failure to do so, and the answer to the merits. Newman Plead, and Prac., 493.
That the personal estate of the intestate was not sufficient for the payment of his debts, and that the appellees were creditors and entitled to proceed under the act of February, 15th, 1877, for a sale'of the land clearly appears.
They could not, because they claimed and had a suit pending- for an undivided half of the land, be denied the remedy or the means provided by the Statute for obtaining payment of their claim probated against the estate. Their rights in that regard were the same as those of any other creditor. The court might, no doubt, in its discretion have suspended the proceeding until the litigation about the title was ended, but it did not do so, and we cannot, from the evidence, conclude that its discretion was not rightly exercised.
The Circuit Court, upon an appeal from the probate court, tries the cause de novo, and renders such judgment or makes such order as the probate court should have rendered or made. Act of March 24th, 1875, sec. 4. It was not error therefore for the Circuit Court to make the order for the sale.
The credit to be given upon a sale of real estate by an executor or administrator, for the payment of debts, is not limited by law to six months as in other judicial sales, but is left to the sound discretion of the court. Sec. 172, Gantt’s Digest.
Affirmed.