Henley v. Johnston, 134 Ala. 646

134 Ala. 646 | Ala. | 1902

TYSON, J.

The order of the probate court granting letters of administration is not appealed from, and its validity is only involved in the attack made upon the decree ordering a. sale of the lands of tifie intestate to pay debts upon Hie petition of the administrator to whom letters of administration de bonis non had been heretofore granted. The right to prefer the application to have the lands sold to pay ¡debts, devolves alone upon the personal representative. It is, therefore, essential to the validity of the decree of sale that the proceeding be instituted and maintained by him. — § 155 of Code;, Landford v. Dunklin, 71 Ala. 574. It follows, therefore,, that if the petitioners appointment as administrator de bonis non was void, that the decree of sale was void. Was his appoointment void? In answering this question it is well to bear in mind that this is a collateral attack upon the order granting the letters to him. In the mater of appointment' of an administrator de bonisnon courts of probate are courts of original, unlimited and general jurisdiction, just as they are in the exercise of their jurisdiction in the appointment of an administrator in chief. “Nothing is intended to be ivithout its jurisdiction except that which so appeal's specifically.” In other words, it must be presumed, in the absence of an affirmative showing to the contrary, that, there was a vacancy in the administration by resignation or removal of the former administrator to sustain the order of the court in granting the letters. — Ikelheimer v. Chapman, 32 Ala. 676; Sims v. Waters, 65 Ala. 442; Gray v. Cruise, 36 Ala. 559; Allen v. Kellam, 69 Ala. 442; Bean v. Chapman, 73 Ala. 140; Landford v. Dunklin, supra.

In the petition for hitters it is shown that the petitioner had been former administrator and had performed the duties of said administration, his final accounts being audited, stated and approved on about- the 12th day of February, 1894, and that there are assets, belonging to said estate unadministered, that the estate is insolvent and that the debts have never been paid in full.

It,is not shown by the averments of this- petition or otherwise whether the petitioner as former administrator had been discharged by an order from his office as administrator. If lie had, the fact that he. made a final settlement and was discharged is entirely consistent with the presumption that he did so after resigning or his removal for cause from office. If he was. not discharged by an order, them the order appointing him ad-. ministrator de bonis non and his- act of qualifying as such amounted to a relinquishment or resignation of his former letters. — Turner v. Wilkins, 56 Ala. 173. So, then, in either aspect, the grant of letters is not void; and as administrator de bonis non he is the proper person to make application for the sale of the lands of the decedent to pay the debts of the estate.

It cannot be doubted that the lands are subject to the payment of the debts of the decedent if the personal property is insufficient to- pay them, and that they may be subjected by the probate count upon proper application of the administrator de bonis non. That they are still the property of the decedent and that there are debts still unpaid is clearly shown by the averments of the petition. It is also shown that the personal property was insufficient to pay the debts and the estate has been decreed to be insolvent by a court, of competent jurisdiction. The decree of insolvency makes a prima facie case of necessity for the sale of the lands, dispensing with the necessity of taking depositions as in chancery cases, substituting the decree for proof of the existence of debts and of the insufficiency of personal assets. — § 326 of Code; Meadows v. Meadows, 78 Ala. 240; Dolan v. Dolan, 89 Ala. 256; Chandler v. Wynne, 85 Ala. 301.

It is insisted, however, that the decree of sale should not stand because it appears that the former administration of the estate was had in the chancery court. This may be conceded, but it is not made to appear that the administration is still pending in that court. For aught appearing, that, court has wound up the former administration and has mot, now a right to exercise its jurisdiction in the further administration of toe estate. No objeeton or defense, of this sort appears to have been interposed in the court below, and there is nothing in the record which would justify toe conclusion that toe fact exists. We certainly cannot presume it in face of the rule that requires us to indulge the presumption of correctness in favor of toe decree appealed from until error isi shown.

Again it is objected that the petition is defective in that it fails to show by the allegations that the decedent, at the time of his death, had or owned either a legal or equitable right or interest in the lands sought to be sold. There is no merit in this contention. It is distinctly averred that he “died, siezed and possessed of the following described real estate, to-wit: Certain interest and rights, not definitely known to your petitioner in and to about forty-eight tracts of land,” etc., etc. It is of no consequence that the interest and rights of the decedent in and to the lands were not definitely known to the petitioner. The fact necessary to be averred is that the decedent owned either a legal or equitable right or interest in the lands sought to be sold. — Jones v. Woodstock Iron Co., 95 Ala. 551. However, it is indispensable that the petition accurately describe the lands. — § 158 of Code; Gilchrist v. Shackleford, 72 Ala. 7; Wright v. Ware, 50 Ala. 549. This was not done. Neither does the decree accurately describe them. There is nothing to indicate, with any degree of accuracy, in what section, township and range they are located. Not even the initial letters denoting the section, township and range used to indicate their location by the government survey. It is true some figures are set down, for instance, 8 — 13—5 opposite to E. -J of N .W. ¿ — E. £ of S. E. but what these figures denote or represent is matter purely conjectural. This omission renders the petition defective for which the decree must be reversed. Wright v. Ware, supra; Long v. Pace, 42 Ala. 495.

Reversed and remanded.