Stuckey v. Stephens

115 Ark. 572 | Ark. | 1914

Smith, J.,

(after stating the facts). (1-2-3) We think the demurrer in this case was properly sustained. This being a suit in equity we may look to the exhibits to ascertain the nature of the cause of action and, having done so, it appears, as is shown in the statement of facts above, that a very valuable estate, consisting of more than $10,000 in personal property, has been administered and, while the good faith of the administrator is not called in question, it appears that, as a result of the administration, he has paid only $618.58 of probated demands; in other words, Stephens only owed that amount of money at the time of his death, so far as the same is evidenced by probated demands, and the administrator received in cash a sum of money twice as great as all of these demands. It appears that the administrator has built a valuable home, and it also appears that he has advanced to the widow and heirs large sums of money. These expenditures are neither debts of the decedent, nor are they such expenses of administration as authorize the probate court, or any other court, to order- a sale of the lands of the estate to pay. The administrator had no authority to build this house. Doke, Admr. v. Benton County Lbr. Co., 114 Ark. 1, 169 S. W. 327. Nor were the advances to the widow and children expenses of administration. In the case of Flowers v. Reece, 92 Ark. 611, this court quoted with approval the syllabus in the case of Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, as follows;

“1. Under Kirby’s Digest, § 186, providing that ‘lands and tenements shall be assets in thé hands of every executor or administrator for the payment of debts of the testator or intestate.’ If there are no debts due by the decedent, there can be no sale of his real estate to pay expenses of administration thereon, unless it appears that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent.”

“3. ‘An order of the probate court for the sale of lands of an estate which shows on its face that it was made to pay expenses of administration, and not debts of the decedent, without showing that the expenses of administration were incurred in the course of administering the estate to pay debts due personally by the decedent, is void, and no rights were acquired under it, although the sale was after-wards confirmed.’ ”

Those cases cite a number of others to the same effect.

(4-5-6) It is not the policy of the law to encourage, or to permit, the administrator to expend the money of the estate for any purpose except to pay the debts of the decedent, or expenses incurred in the course of administering the estate to pay the debts personally due by the decedent. The administrator, as such, has nothing to do with the education of the children, nor the support of the widow, nor with the permanent improvement of the lands of the estate, further than is necessary to make these lands a .source of income for the payment of the debts. Indeed, under the statute he has no control whatever over the lands except •for the payment of debts, and no necessity for any such control existed in the present case.

No question of the right of an administrator who has advanced money for the benefit of the widow or heir, to subrogation, is involved in this case. That is not the relief asked. The case is that of an administrator who has expended money without lawful authority so to do, who asks that a lien be declared upon the lands of the estate and those lands ordered sold in payment of the money thus expended. Such a proceeding is contrary to the policy of our administration law, and the chancery court was without jurisdiction to grant the relief asked, and the demurrer to the complaint was, therefore, properly sustained, and the decree is affirmed.