Hill v. Hill's Adm'r

9 Ala. 793 | Ala. | 1846

COLLIER, C. J.

It is enacted by a statute passed in 1822, that the Orphans’ Court shall not decree or order a sale of the real estate described in the petition, “ where the allegations are denied by the answer; unless satisfied by proof to be taken by deposition as in Chancery cases, and filed in the cause.” [Clay’s Dig. 225, § 19.] This act is so explicit in its terms as to leave no Lroom for doubt as to its meaning, that proof shall be taken in cases like the present, “ by depositions as in Chancery cases, and filed in the cause.” It does not appear from the transcript, which (we must intend) is a “full and complete copy” of all the entries and orders of the court, as well as all the papers in file, pertaining to the case, that any depositions were ever taken. The recital in the decree, that it appeared to the court by “ interrogatory” that the personal estate of the intestate was insufficient to pay the debts with which it was chargeable, cannot serve as a substitute for depositions ; even if such recital furnished a predicate for the conclusion that depositions were once in file. If they were before the Orphans’ Court and have been lost, they should have been substituted upon due proof, and made a part of the transcript before us. For the defect of proof, the decree is reversed and the cause remanded.