Kornegay v. Mayer, 135 Ala. 141

Kornegay v. Mayer

135 Ala. 141 | Ala. | 1902

SHARPE, J.

One of the important requirements of the statute authorizing the probate court to decree a sale of lands of a decedent’s estate to pay debts'is that the. petition “must describe the binds accurately.” Code, § 158. Jurisdiction in such a proceeding* is founded on the petition and does not attach to lands not described with sufficient certainty.—Gilchrist v. Shackelford, 72 Ala. 7; Smitha v. Flournoy,'s Admr., 47 Ala. 345 ;DeBardelaben v. Stoudenmire, 48 Ala. 643. In this petition the lands are described as “50 acres on the east side of the W. \ of the S. E. ¿ of Section 15 and fractional N. W. end of N. E. { of Section 22 all in Township 18 Range 3 east, containing 75 acres and situated in the counties of Hale and Marengo, Alabama.” The decree follows this description except it locates the lands wholly in the county of Marengo. From this it is seen that about one-third of the land of which a. sale is sought, viz., that part in section 22, is left without any description by which its precise location in that section can be fixed. The attempted description of that part of the land is not only inaccurate but is void for uncertainty, and this in itself renders the decree erroneous in so far as it directs the sale of the land in section 22.

Whether the discrepancy in the description a:s to counties between the petition and the decree is material we do not decide, since to do so would require a somewhat *146doubtful application of judicial knowledge of county boundaries, and the question can be obviated on another trial.

The existence of á, necessity for subjecting lands to debts is of the essence of the application, the burden of .proving which is on the administrator. Any fact which will show the non-existence or extinguishment of debts is available, to' the heirs as ai defense.—Warren v. Hearne, 82 Ala. 554; Trimble v. Fariss, 78 Ala. 260; Steele v. Steele’s Admr., 64 Ala. 438. The heirs by setting up the statute of non-claim do not assume the burden of proving that defense, but the administrator is regarded as holding the affirmative of the issue and to maintain it, is bound to prove due filing or presentment of the claims. The rule is not different from that which obtains where creditors seek in their own right to roacb. lands of a decedent, as to which see May v. Parham, 68 Ala. 253; Mitchell v. Lea, 57 Ala. 46; Evans v. Norris, 1 Ala. 511. A presentation to save a claim from the bar of the statute of non-claim must be such as to give information of the. character of the claim and of the amount of liability it imports, and this requirement must; be met not only where the presentation is to the administrator personally, but also where it is made by filing the claim or a statement thereof in the office of the judge of probate.—Smith v. Fellows, 58 Ala. 467; Bibb v. Mitchell, Admr., Ib. 657; Halfman’s Extx. v. Ellison, 51 Ala. 543; Floyd v. Clayton, 67 Ala. 265. When the latteir mode is pursued the statute, provides, the. claim or statement “must be docketed, with a note of the time of such presentation.” — Code, § 133. The docket entry when made is evidence of the filing, and when sufficiently full it suffices to give the required information as to the character of the claim.—Agnew v. Walden, 84 Ala. 502, s. c. 95 Ala. 108. But, an omission of the probate judge to make the proper entry ¡does not render the filing abortive or preclude the making of proof of actual filling. Floyd v. Clayton, supra. Other than by the docket entry the statute prescribes no way to evidence the filing, bait, the entry furnishes evidence in a form which is permanent and attended with at least a prima facie pre*147sumption of correctness. Therefore, the docket entry must be regarded as the best evidence of the act of filing if not of the character of the claim. It is presumed the probate judge did his duty in respect of, docketing claims filed against this estate; and the substitution of oral testimony for the docket entry as evidence of such filings, without accounting for the non-production of the entry, was in violation of the mile which requires the best evidence of which the case is susceptible. But apart from its secondary character, that testimony was wholly insufficient to avoid the statute of non-claims, in that it failed to furnish any description by amount or otherwise than by the names of the claimants, of the claims said to have been filed*, and, therefore, failed to identify those claims with the amounts of Mayer Bros, and J. 0. Webb’, respectively; which constituted the only indebtedness of which evidence was taken.

The testimony of Howze as to what account against the decedent, was shown by Mayer’s books should have been excluded.—Miller v. Mayer, 124 Ala. 434.

The heirs of the decedent, are not in this proceeding his representatives in such sense as to make their admissions evidence of his indebtedness. The testimony concerning admissions of some of them on that subject should have been excluded.

Miller's application for letters of administration on Fred Kornegay’s estate is, not evidence against the heirs of this ('state to fix their status as such heirs oir for any purpose, and should not have been admitted.

Much testimony was made, the subject of exceptions reserved by appellants, which, if objectionable on any ground, is not, shown by the record to have been open to the partícula,r objections made. It seems unimportant to pass •specifically on the assignment® of error based on those exceptions.

No decree having been rendered at tire term a.t which the cause was tried, the court in decreeing at the next term acted within its power and duty — a. duty so plain that its performance might have been compelled by mandamus.—Pinney v. Williams, 69 Ala. 311.

For the errors indicated the. decree will be reversed and the cause remanded.

Reversed and remanded.