Rice v. Drennen, 75 Ala. 335

Rice v. Drennen

75 Ala. 335 | Ala. | 1883

SOMEBVTLLE, J.

The present proceeding is an application made by an administrator to the probate court, for the sale of lands belonging to the estate of a decedent, such sale being intended for distribution among the heirs. The jurisdiction is invoked under section 2449 of the present Code (1876), which provides that lands of an estate may be sold by order of the probate court, “when the same can not be equitably divided among the heirs or devisees.”

The heirs appeared by attorney and contested the application by filing three pleas, objections to all of which seem to have been sustained by the court, although it does not clearly appear in what form they were presented by the petitioner. It is stated in the record that the first and second pleas were “ overruled ” by the court, and that a demurrer was sustained to the third plea.

We are unable to perceive upon what ground the first plea was adjudged bad. It was a general denial of all the allegations of the application, being tantamount, in legal effect, to the general issue in ordinary cases of pleading. The court erred in pronouncing it bad, in whatever form the objection to it may have been presented.

It is contended that this action of the court must be regarded as error without injury, as the case seems afterwards to have been tried upon its general merits. It does not appear, however, that the contestants offered any evidence in the cause whatever, and we can not know that they were not deterred from doing so by this erroneous ruling of the court. They had a right to suppose that, in as much as the plea had been pronounced bad, all evidence offered in support of it would have been excluded by the court on objection taken to it by the petitioner.

*338The second and third pleas were both bad on demurrer. If the lands described in the petition belonged to the decedent at the time of his death, and the heirs acquired title from him by ■descent, or devise, it is no answer, at least in a court of law, to an application filed by the administrator, containing the neces-saiy jurisdictional allegations, that the heirs have agreed to dispense with an administration, and have undertaken to deal with the lands as their own, even to the extent of creating a trust in them. It is true, that where the estate is one merely in trust, the probate court has no jurisdiction to order a sale of it for distribution.—Wimberly v. Wimberly, 38 Ala. 40. But it is no objection that the title of the decedent was equitable and not legal.—Duval v. McLoskey, 1 Ala. 708; 1 Brick. Dig. p. 440, § 174. So where the title held by the heirs is not the one which they acquired from the intestate or the testator by descent or devise, but has been derived from some other source, the court will not, on application by the executor or administrator, order a sale of the lands.—McCain v. McCain, 12 Ala. 510; Johnson v. Collins, Ib. 322; Wharton v. Moragne, 62 Ala. 201. It seems to us that it is no answer to the application, that the heirs have encumbered their title, or agreed between themselves to dispense with the machinery of an administration. The statute confers on the administrator the right'to make the application, and upon proof of the requisite allegations, it is the duty of the court to grant the order of sale. Cases like the present are made no exception to the general provisions of the statute. The most that can be alleged in behalf of the agreement of the heirs is, that it constitutes a mere egwitable estop-pel. But as to this, we decide nothing. The pleas under consideration do not controvert the facts alleged in the petition. They present an issue which at law is immaterial, and, therefore, no defense to the proceeding. If the case is one of impertinent or oppressive interference with the equitable rights of the heirs, they must seek relief in another forum whose powers are ample to protect them.—Owens v. Childs, 58 Ala. 113.

The motion made by the contestants to revoke the petitioner’s letters of administration was properly overruled. It was a motion not pertinent to the present proceeding. It can not be doubted that the probate court possesses authority to revoke letters of administration which have been improvidently granted.

But the practice, in such cases, is for some interested party, desiring to have the letters revoked, to make an application in writing, setting out the facts which authorize the court to act, and invoking its jurisdiction for this purpose. It must be a direct proceeding, due notice of which must be given to the administrator, who has a right to appear and contest it, by showing cause why the prayer of the petition should not be *339granted. Great injustice, as well as confusion, would result by allowing such an issue to be collaterally injected into a proceeding to which it has no relevancy.

There is nothing in the other assignments of error.

Reversed and remanded.