73 Ala. 356 | Ala. | 1882
— The judgment of the probate court- in the present case must be reversed. The widow of the testator, Martha Meadows, was a devisee under his will, and seems to have dissented from its provisions within the period allowed by statute. — Code, 1876, §§ 2292-93. The application of the administrator should have alleged the fact of her being a devisee, and of her subsequent dissent, so that the allegations and proof would correspond. Petitions of this character for the-sale of a
There was no legal evidence of the widow’s dissent from the will. It is stated in the bill of exceptions that no evidence of such dissent was offered by either party, but that the court considered all the papers connected with the administration as in evidence, and that these files showed such dissent. This was clearly error. Unless the record of Mrs. Meadow’s dissent from her husband’s will, which the statute requires to be in writing,, had been formally introduced as evidence in the trial, the court had no right to consider it as a factor in controlling its judgment. If introduced, the contestants may have interposed some legal objection to it. Facts within the mere knowledge of a judge, unless of such a character as come within judicial cognizance, are not to be considered as a part of the testimony in a cause, unless offered in evidence, or admitted in the pleadings.
The application avers the amount of the debts due by the estate, and the fact that there was no personal property. The logical deduction followed that the personal property was insufficient for the payment of debts, and therefore a sale of the lands was necessary. It would have been more intelligible to have alleged such inference, but the failure to do so was clearly no ground for demurrer. Facts, and not mere inferences, arguments or deductions, are required to be alleged in pleadings under the Code as well as at common law, although the strictness of the ancient rule has been greatly relaxed.— Quarles v. Campbell, Adm'r, 72 Ala. 64.
Whether the averment, that “ the lands of the estate are the following” (describing them), is tantamount to an averment that the testator died seized of such lands, need not be decided, as the objection, if well taken, is amendable.
The application was further defective in failing to aver the fact that the decedent left a will. The statement of who are devisees is only inferential and descriptive.
There is nothing in the other objections urged by the appellants. The facts necessary to be stated and proved, in an application made by an administrator or executor for the sale of the lands of a decedent’s estate for the payment of debts, are mentioned in the case of Quarles v. Campbell, Adm’r, supra, where the whole subject is fully discussed, and need not, therefore, be here again reviewed at length.
The judgment of the probate court is reversed and the cause-remanded.
