78 Ala. 240 | Ala. | 1884
The present appeal requires us to construe the.act “to authorize administrators and executors of insolvent estates to sell the lands of said estates for the payment of debts, without taking testimony, after the estates have been declared insolvent by the courts of this State,” approved February 13th, 1879. — Pamph. Acts, 164. We can not agree with appellants, that the purpose of this statute was simply to relieve petitioners of the duty of taking their testimony in the form of depositions,-as in chancery cases. We think the legislative intent was to substitute the decree of insolvency for proof that there were debts of the estate to be paid, and that the personal assets were insufficient therefor. There is nothing in this objection.
2. Neither is there anything in the objection, that the proof of the testator’s ownership of the land sought to be sold was either insufficient or illegal. His uninterrupted occupancy of the land, with open acts of ownership, for more than twenty years, gave him a title against the world, in the absence of proof that he did not enter or occupy in his own right.
3. Nor was the administrator an incompetent witness to prove such occupancy. It was neither a transaction with, nor a statement by the deceased. — Code, § 3058; Miller v. Clay, 59 Ala. 162; Tisdale v. Maxwell, 58 Ala. 40; Kumpe v. Coons, 63 Ala. 448.
4. Nor do we think the Probate Court erred -in rejecting the plea of former suit pending. The second petition was filed after the estate was declared insolvent. The claim it sets up for relief, rests on entirely different principles from those asserted in the first, and is supported by entirely different testimony.' The causes of action are not one and the same.
5. But, in the final decree, there is matter for comment. A petition had been filed, and an order made, allowing dower to Mrs. Meadows. Commissioners had been appointed to lay it off, and they had made their report of allotment. That report, however, had not been confirmed, nor acted on. It could not be known, in the then state of the proceedings, precisely what lands the dower would cover. The decree should distinguish between those lands, the entire title to which, with immediate enjoyment, was ordered to be sold, and the dower lands, in which only the reversion could be sold. This could not be done, until the report of the commissioners was acted on, and the allotment made the decree of the court. -Both lines of proceeding being in progress in the same court at the
What we have said relates to proceedings when the two lines of contention are travelling pari passu. We do not intend to deny the power and right of the Probate Court to order a sale of lands of a decedent, subject to the widow’s right of dower.
The irregularities pointed out are intended as a guide in cases like the present. They are not enough to secure a reversal on the present appeal.
Affirmed.