Spence v. Parker, 57 Ala. 196

57 Ala. 196 | Ala. | 1876

BRICKELL, C. J.

The decree of the Court of Probate refusing to order a sale of the lands is a final decree, from which an appeal lies to this court under sections 2246-2247 ■ of the Revised Code. It was a termination of the proceedings, operating a bar to a similar application founded on the existing facts. Suits at law could be prosecuted to judgment against the administrator on the outstanding debts of the intestate, and though the real estate was of value sufficient to pay them, he could pursue no remedy for their subjection. The land being liable and of sufficient value to pay the debts, the estate was not insolvent, and a report of insolvency could not be sustained. It is the right of the personal representative, essential to his protection, and a duty he owes to creditors, to apply for and obtain an order for the sale of lands for the payment of debts when the necessity exists. The denial of a proper application, supported by proper evidence, is the denial of a clear legal right, as much so as the rendition of judgment of dismissal in a court of law, against a .plaintiff having a just cause of action, properly presented and proved. The motion to dismiss the appeal is overruled.

All the property of a decedent, without regard to its ■character, whether real or personal,'not specifically exempt, .•.and without regard to the character of his title, whether legal or equitable, if attended witli a beneficial interest, is charged with the payment of debts, and the same must be sold for that purpose when necessary. — Eevised Code, § 2060. If the personal estate is insufficient, lands are to be sold under an order of the court of probate obtained by the personal representative. — Eevised Code, § 2079. The interest of the decedent is charged with the payment of the debts, whether it is legal or equitable, whether it comprehends the entire fee, or is a less estate, if it is a beneficial interest descendibleto heirs. It is on the interest, the estate of the decedent,, the decree of sale operates, intercepting its descent to the heir and passing it to the purchaser, when the sale is consummated, and a conveyance made under the order of the court. This has been too often declared to be regarded now as a disputable question.—Perkins v. Winter, 7 Ala. 855 ; Evans v. Matthews, 8 Ala. 99; Duval v. P. & M. Bank, 10 Ala. 636 ; Jenninqs v. Jenkins, 9 Ala. 285; Vaughn v. Holmes, 22 Ala. 593.

The court of probate clearly erred in refusing the order of sale, because the estate of the intestate was that of a tenant in common. It was a legal estate, not held in trust, subject to execution at law, during the life of the intestate, and on his death charged by the statute with the payment of debts. There is nothing apparent on the face of the proceedings indicating that it was exempt under the Constitution or the statutes. If such facts exist, they were not averred in the * answer to the application, and no proof of them made.

The decree of the court must be reversed, and the cause-remanded.