72 Ala. 64 | Ala. | 1882
An application to the Probate Court for the sale of lands, for the payment of debts of a decedent, is required to be made by an executor or administrator. Its contents must state, 1st, an accurate description of the lands; 2d, the names of the heirs or devisees, and their places of residence ; 3d, which of these, if any, are married women, infants, or non compotes mentis¡ 4th, that the estate of the deceased owes debts to a certain or an estimated amount; 5th, that the personal property of the estate is insufficient in value to pay such debts. The two last averments must be proved by the depositions of disinterested witnesses, which are required to be filed of record; and the application must be verified by oath. These are substantially the requirements of the statute. — Code, 1816, §§ 2450, 2455. Where there is a will, the fact should be so stated, and accompanied with the averment that it confers no power to sell the lands for the purpose of paying such debts. Code, § 2447.
The purpose of all pleadings is to eliminate an issue. They are required, therefore, generally to state facts, and not mere legal inferences, or conclusions of law.—2 Brick. Dig. 330, § 3. It is true that “the strictness of the old rules of pleading has been greatly relaxed, and courts of the present day do not lean to objections which can not affect the substantial justice of the case.” Stein v. Ashby, 24 Ala. 528. This is peculiarly true under our statutory system of pleading, so far as concerns mere defects of form. No objections can be allowed for such defects, “ if facts are so presented that a material issue, in law or fact, can be taken by the adverse party thereon.” — Code, § 2978. So, it is provided, that “ the plea must consist of a succinct statement of the facts relied on, in bar or abatement of the suit; and no objection can be taken thereto, if the facts are so stated that a material issue can be taken thereon.” — Code, § 2987. Of course, all pleadings which conform substantially to Aie.forms prescribed by the Code, would be sufficient; and there are cases where the averments of conclusions, in the nature of mixed questions of law and fact, have been sustained by analogy.—S. & N. R. R. Co. v. Thompson, 62 Ala. 494, 500.
The application of the administrator, in the present case, did not come up to these requirements, and was obnoxious to at least one of the objections urged in the demurrer of the contestant. It is not averred by the petitioner that there are any debts due by the estate, or that they are of a given amount. But, as mere matters of evidence need not be pleaded, it was unneees-
The court, in our opinion, erred in overruling the demurrer to the application.
It is further urged, that the evidence taken was insufficient to authorize the decree of sale. In this view we concur, for several reasons. The statute' requires, that the “necessity of the sale” — or, what is the same thing, the insufficiency of the personal property for the payment of the debts — must be proved by depositions taken as in chancery cases. — Code, §§2455, 2458. This proof 'Can be made only by showing the existence and amount of valid debts, and that the available personal property or assets are not of sufficient value' to pay or discharge them. This is manifest from section 2456 of the Code, which provides that the court “ may direct the sale of all, or suoh portions of the real estate, as may he necessary to pay the debts.” Such an order would be impracticable, without proof of the amowit ■of the debts, and the deficiency in value of the personal property.
These are important allegations, the burden of establishing which rests on the administrator; and if they are successfully controverted, the application can not be granted.—Garrett v. Bruner, 59 Ala. 513. This proof must be made by the depositions of disinterested witnesses, and filed of record. The depositions of the witnesses, Gibson and Simmons, contain no evidence of any indebtedness of the decedent. They are otherwise defective, also, in stating merely the deductions of the deponents, without any allegation of the facts within their knowledge from which such conclusions are deducible.
No affirmative evidence was required of the fact that' the witnesses were disinterested. Their competency must be presumed, in the absence of evidence to the contrary; the burden of proof, in such cases, being always on the objecting party, to sustain his exception to the competency. — 1 Greenl. Ev. § 390.
The neglect of the commissioner to indorse the title of the cause upon the envelope, as required by the 64th rule of chancery practice (Code, p. 170; § 4458), did not vitiate the admissibility of the inclosed depositions of the witnesses. Such indorsement is intended only as a convenient method of identification, and is directory merely.
The decree of the Probate Court must be reversed, and the cause remanded.
