122 So. 668 | Ala. | 1929
The bill in equity, by appellants, sought sale of lands for division among joint owners.
The answer of respondents denied that complainants had any interest in the lands; that the same were duly claimed and set apart to them as exempt property from the insolvent estate of Allen Thompson, who died November 10, 1887, and that the title vested absolutely in the widow and minor children. And other matters of equitable cognosce are set up by the answer. Evans v. Evans,
The right to homestead and exemptions of the widow and minor children was governed by the statutes in force at the date of Mr. Thompson's death (Bodeker v. Tutwiler,
The respective claims of complainants and respondents are thus stated by the trial Court:
"The Complainants claim an interest in the lands involved as heirs or assigns of heirs, of Allen Thompson, who died about Nov. 10, 1887, owning these and other lands. His estate was administered in the Probate Court of Marion County, letters of administration first issuing on March 4, 1889, and on April 4, 1889, these lands were set aside to the widow and minor children, under whom the Defendants claim title by mesne conveyances. It is the contention of the complainants that the title reverted to the heirs of Allen Thompson on the death of the widow in 1926 (all the minors then being of age), and that the lands are now subject to partition. On the other hand, the Defendants contend that, following the allotment and setting aside of the lands to the widow and minors, the title became vested in them absolutely because of the insolvency of the estate, and that the absolute title is now in Defendants. The contention in this respect is, either, that the estate was declared insolvent *539 by the Probate Court, or, that the failure to have it declared insolvent was a fraud upon the surviving widow and minor children of Allen Thompson.
"Clearly, the estate of Allen Thompson was, as a matter of fact, insolvent, and before the administration was closed this fact was brought to the knowledge of the administrator and the Probate Judge. Some of the evidence tends to show that a petition was filed by or on behalf of the administrator to have the estate declared insolvent. No such petition appears in the record of the administration; nor is there anything in that record to show that the estate was ever declared insolvent, although the petition to sell certain other lands of the estate to pay debts does contain an averment that the estate was then insolvent. The fact of the insolvency being known to the administrator and the Court, the duty was mandatory on the administrator to report it and on the Court to declare it. If this was not done, why was it not done? Was it a mere oversight? The circumstances, as shown by the evidence, refute such a presumption. * * *
"Allen Thompson had a former wife, by whom he had children and from whom he was divorced before he married the wife who survived him and by whom he also had children, including these minors. Children of this former marriage were, during and as shown by the record of the administration, even as now and as shown by this suit, antagonistic to the claims and rights of the stepmother, the widow, and her minor children. They employed counsel to resist the proceeding to set aside the homestead to the widow and minors, on the ground that this widow was not the lawful wife of their father. It may not be significant, but it is worthy of note as showing, to say the least, the careless manner in which the files of the case in the Probate Court were kept, that it became necessary during this litigation to substitute the appraisement bill, order to appoint appraisers to allot homestead, and the report of commissioners allotting homestead, which were missing from the files. From a ruling of the Probate Court in favor of the widow and minors the case was appealed to the Supreme Court. Thompson et al. v. Thompson et al.,
" 'Please accept thanks for the receipt of $50.00. I have filed application in the Probate Court of Marion County to have the estate of Allen Thompson declared insolvent and to decree the sale of the rest of the land for the payment of debts. This will vest in you and the minor children an absolute estate in the exemption set off to you.'
"Evidently, the widow and minors thought and always assumed this had been done, and held and treated the lands as their absolute property. Was it not done? The records are silent. But equity must speak and say that it was, or if not, that the failure to have it done, under all the circumstances, was a fraud upon the widow and minor children."
The lands in question belonged to Allen Thompson at the time of his death and were 300 acres in area. He had two sets of children; the first were all of age; the second were minors who lived on the land with their mother. The estate was administered, at the instance of Mrs. Thompson, by one Bishop who died, and Davis was appointed administrator de bonis non, and, having completed the administration as to assets coming into his hands, was discharged. The record of this administration is in evidence.
The intestate lands consisted of 300 acres; 120 acres thereof were sold by the administrator for payment of debts, and 160 acres set apart as a homestead on due application to his widow and minor children. The petition to sell the lands to pay debts, by Bishop as administrator, made known to the court the insolvency of said estate, saying: "W. T. Bishop, Administrator of the Estate of Allen Thompson, deceased, respectfully represents unto your Honor that the estate of said decedent is insolvent; that there is no personal property of said estate to satisfy the debts of said estate and that it is necessary to sell the land of said estate to pay the debts of said estate." All the heirs of said estate are averred to be of age, except "Henry W. Alonzo W. Thompson who are minors under twenty-one years of age, of sound mind and resides in Marion County, Ala. Wherefore, your petitioner avers that it is necessary for your Honor to grant an order in the premises, and prays that for the purpose of paying the debts of said estate your Honor will grant an order of sale."
A guardian represented the minors. The interrogatories in support of the petition showed the fact of debts after allowing exemptions to the widow and minor children; that there was not sufficient personal property to pay the debts, and there was a necessity to resort to the sale of the real property *540 for such purpose. It was so ordered. The lands were sold for $100, and that sum was applied to and fully expended in the payment of court costs. "The amount of claims against the estate still unpaid (were) about $000.00;" and these facts were specifically indicated in the report and accounts of the administrator. The receipts of Seay and Cantrell were for their pro rata of the amount due them for acting as appraisers in said estate. The final decree makes no reference to the insolvency of said estate and recites that "the assets of said estate the sum of One Hundred Dollars in money and that he has justly expended in and about the costs and charges necessary and incident to the said administration the sum of one hundred dollars, leaving no balance for distribution among the heirs. * * * the amount so collected by above administrator being paid out on the costs and charges necessary and incident to said administration as per vouchers. It is ordered by the Court that said administrator be discharged from further liability on said administration."
It will be noted in passing that in Dickens' Jarndyce v. Jarndyce (Bengough v. Eldridge, 1 Sim. 173, appellate case Cadell v. Palmer), the estate was consumed in payment of the costs as was the case here as to the purchase price of the 120 acres.
The petition of the widow, Roanna Thompson, for letters of administration, recited it was the property of the estate "not set apart by the Code to the widow and minor children" that was to be administered, and it was upon her petition that letters issued to Bishop.
The required inventories were filed, and showed household and kitchen furniture, farm implements, products and stock of limited value and number, that were claimed in large part by the widow as exempt personalty.
Before this inventory of personal property was filed, in February, 1889, the widow petitioned the court to set apart to her and the minor children the 160 acres selected to embrace the homestead and dwelling of decedent, and alleged that she "selects for herself and the said minor children the above described premises as exempt from administration under Section 2840 of the Code of Alabama of 1876, for herself and said minor children, and she therefore prays your Honor to appoint Commissioners under Section 2841 of the Code of Alabama to set apart and allot to her and said minor children the above described premises, as required by law, and to make all such other orders and decrees as may be necessary in the premises." That she recited in that petition the wrong section in the statute under which the claim of exemption was made, the claim within 20 days after grant of letters did not affect that right. Thompson v. Thompson,
Later, on December 8, 1890, the administrator of that estate reported the insolvency thereof, that there were debts; and prayed for a sale of the 120 acres of land not set apart as homestead for the payment of debts. The hearing was set down by the court, depositions taken that showed debts and jurisdictional facts to exist, and the decree that followed granted the right of sale on the fact of insufficient personal estate, and that sale of the real property was necessary to pay debts. The existence of debts and the insufficiency of personal property were necessary to authorize a sale. Banks v. Speers,
It is further important to note that in the contest of the homestead allowance (Thompson v. Thompson, supra) it was ascertained there was a diminution, spoliation, or loss of a part of the papers in the file and administration of the Thompson estate. And it was the subject of a motion to establish such as were pertinent to the allotment of homestead and exemptions. The court decreed: "And it appearing to the Court that certain papers pertaining to this cause have been lost or destroyed, it is ordered that said papers be substituted on proper proof being made of their existence and character and contents, and by agreement of counsel one day's notice of said substitution and with copies of the papers to be substituted be served on plaintiff's attorney, and on motion defend." The motion on which this decree of substitution was made is shown to have limited that inquiry and decree as follows: "* * * It being made to appear to the Court that the appraisement bill order appointing appraisers to allot Homestead, and report of Commissioners allotting Homestead to widow and minor children, in a cause pending in this Court wherein Robert Thompson et al are contestants against the allotment *541 of Homestead to Roanna Thompson and minor children, have been lost or destroyed, and the defendants alleging that the same are substantial copies of the original papers and the plaintiffs after examining said copies, agreeing to allow them to be filed as the original papers in this cause and to have the same validity as the original papers would have. It is therefore ordered that said appraisement bill order appointing Commissioners to allot Homestead and report of Commissioners allotting homestead to widow and minors, offered be substituted as the original papers, and that they have the same validity and effect as the originals."
The contest of exemptions or homestead on such substituted record was disallowed on August 5, 1889, and affirmed in Thompson v. Thompson,
When the whole record in the probate court and conduct of the proceedings are considered, it is indicated that said estate was insolvent, the money received from proceeds of the sale of the real property was only sufficient to pay the court costs, and was so used, and nothing remained in the hands of the personal representative or court, and certain creditors accepted a pro rata payment from the administrator, shows the estate was known to be, and so treated, as an insolvent estate, though no decree to that effect is found in that file or the minutes of the probate court.
The statute of the time having application (sections 2820, 2821 and 2827, Code of 1876) concludes with the provision that homesteads "may be retained by such widow or by such child or children, until it is ascertained whether the estate is solvent or insolvent, and if the estate is insolvent, it shall vest in them absolutely." Like provisions are contained in section 2543, Code of 1886, and come from Acts 1872-73, §§ 3, 15, pp. 65, 69. See Gen. Acts 1876-77, pp. 35, 43, §§ 9, 26, providing for homestead and exemptions from payment of debts and administrations and abandonment of homestead. Bodeker v. Tutwiler,
The question of importance, then, is whether of the Thompson estate it was judicially "ascertained" and declared it "is insolvent" either by decree of the probate court, expressly shown, or by the legal presumption now to be indulged from what is expressly shown by the incomplete record of the administration of said estate that was finally closed by the decree of April 11, 1892. The probate court lost all jurisdiction in the premises after final settlement and decree of discharge of the personal representative. Miles v. Lee,
It is certain from the foregoing proceedings in the probate court, reciting and treating the estate as insolvent, that the widow was led to believe, and was warranted in the belief, that she, for herself and the minor children, held the homestead set apart to them as vesting the fee. This belief or assurance is confirmed by the testimony of Mr. Key, the attorney for the widow, that claims were filed against the estate (and it was only on such proof that the decree for sale of lands could have rested). Such insolvency was known and reported by the administrator to the court. These parties are shown to have known that the estate was insolvent, and said attorney prepared and filed the report showing its insolvency. His letter of January 16, 1891 — from Key to Mrs. Thompson — was: "Dear Madam: Please accept thanks for the receipt of $50.00. I have filed application in the Probate Court of Marion County to have the estate of Allen Thompson declared insolvent and to decree the sale of the rest of the land for the payment of debts. This will vest in you and the minor children an absolute estate in the exemption set off to you." No such petition is shown by the record other than that of the administrator.
It is presumed that certain public officials discharge their duties in cases where such presumption may be indulged, and in the absence of evidence to the contrary. This court has indulged the presumption that a school trustee issued the certificate of purchase to parties giving notes for school lands, Barry v. Stephens,
In Foshee v. Kay,
In Munchus v. Harris,
In the case of O'Daniel v. Gaynor,
Will the law presume, under this record shown at one time to have been incomplete, that the probate judge did his duty in the premises? By section 2549 et seq., Code of 1876 (section 2223, Code of 1886), the personal representative must file with the judge of probate, when he is satisfied that the property of the estate is insufficient to pay the debts, a report in writing of such fact or belief. Such report was filed in December, 1890, proof was taken showing debts, and there was a decree of the sale of the lands. This is conclusive that there were debts and that the land was sold for the payment thereof. The report required of the administrator was made and is shown by the record; the decree of insolvency was petitioned for. The mandatory provisions of the statute required the judge of probate, upon such report, to give notice to creditors of a day for that hearing, section 2553; provided that any creditor may make an "issue of insolvency" which may be tried by the court if no jury is demanded, section 2555, Code of 1876. In the event of no contest by a creditor, it was mademandatory upon the court to "declare the estate insolvent" and to order the executor or administrator to "make a settlement of his accounts." Sections 2559, 2560, Code.
It is held that jurisdiction attaches on the filing of the report of insolvency. Hine v. Hussey,
We have adverted to the condition of the record, or files in the probate court; that a part thereof had been lost or destroyed at and during a portion of the time of the administration. There was an administration in chief, and that of administrator de bonis non and the allowance of allotment of homestead was contested. To illustrate, in issue of the contest of exemptions alone, was the motion and order of substitution of the lost documents pertinent to the trial of right of Mrs. Thompson as the widow of intestate, and that of her minor children to homestead? The lost papers made the subject of that motion to substitute were "appraisement bill, order appointing appraisers to allot homestead, and report of commission allotting homestead to the widow and minor children," and were allowed and substituted by the undated order of the court recorded in records "Probate Minutes, Vol. 1, p. 320." This case was appealed and is reported as Thompson v. Thompson,
It must then be assumed that the record is incomplete or insufficient in the failure to show that a decree or adjudication of the insolvency of said estate was entered, though the insolvency of the estate was reported and shown. The court must presume that the mandatory, official, and ministerial duties of the court were performed.
It may be presumed under the status of force, and the facts before us, that, when the estate was reported by the administrator to the court as insolvent, such report was duly noted and set down for a hearing after notices required by sections 2553-2554, Code of 1876; it will be presumed, after such a lapse of time and condition of the record at this time, that, if there was a contest, it was duly heard, and that action was taken as required by statute. Section 2559, Code of 1876. The only necessary parties, under these old statutes, are the creditors and personal representative. Eubank v. Clark,
If there was no contest of the report of insolvency, the proceeding is in rem, and jurisdiction attached on filing the report of the administrator, Hine v. Hussey,
In the incomplete condition of the record, and in view of the mandatory provisions of the statute, can we say that such decree was not entered? However this may be, under the averred facts and the evidence, the failure thereof amounts in law, in a court of equity, to "a contrivance" with the effect of a fraud in law that defeated the "adjudication of insolvency." Hames v. Irwin,
And in Hames v. Irwin,
When the whole of the file of the administration and minutes of the probate court are considered under the pleading and other evidence, it is apparent that the estate was treated as insolvent. This is shown by the report of the administrator to the court, in the payment of a pro rata part of some debts, in the payment of the costs in full, the failure to show payment of other debts shown to have existed, and in the decree of the discharge of the general administrator on payment of court costs merely, without showing a special administration as to the general debts, as provided by statute. One of the adult heirs of the estate investigated said phase of the case, at the time or immediately thereafter, and was informed by the administrator and the judge of probate that the estate was insolvent and was so dealt with, and that the title was invested in fee in the widow and her minor children by the homestead allotment. Upon this information and assurance parts of the land were purchased and valuable improvements placed thereon. The widow and her children had the right to assume, believe, and assert that they were invested with the absolute title, and to deprive them thereof would be unjust, and will not be sanctioned in this procedure.
This phase of the evidence was adverted to by the trial court in the decree heretofore quoted, from which appeal is taken.
Resting upon the assurance of fact, which she had been given and had the right to assume, the widow and minors held possession of the lands until the latter became of age and sold parts of it from time to time; and she and they, and successors in interest, these defendants, held undisputed, actual, open, and undisturbed possession until this date.
There can be no question of laches defeating their rights or the rights of the defendants. Complainants' counsel have not raised the question of laches for the reason that equitable doctrine does not run against a party in peaceable possession under an equitable claim of title. Ogletree v. Rainer, *545
Under the pleading, evidence, and record, and the authorities I have cited, it is the duty of this court to treat the estate of Allen Thompson (if not judicially declared insolvent) as if the failure to have done so by the court, no creditor having intervened to contest, as a fraud upon the statutory rights of the widow and minors, and in a court of equity as if the legal title had vested absolutely in them. And the same rights and equity with which the widow and her said children were armed were never lost so long as they held and claimed the absolute possession of the land, and such equitable rights inuring to these defendants and their successors are not shown to have ever been waived or lost.
To advert again to the Kilgore Case, supra, the fraud was practiced by the widow and administrator against the adult heirs. The Supreme Court held in equity that the court had jurisdiction to deal with the fraud years after administration was closed, and to fix the true status as between the children and grandchildren of decedent Kilgore; and declare the true title as it would have been vested and declared if the fraud in law had not been practiced. In the present case the fraud (if no adjudication of insolvency) resulted in law against the widow and the minor children, and at a time when she was being led to believe that all such proceedings would be had, and were had that were essential to have the estate adjudicated insolvent and vest absolute title in her and the minors to the homestead, and so held the same for many years. And her and their holding was justified under the record and facts as that of the absolute owner. The decree should be affirmed and the old matters closed. Thompson v. State,
All the justices agree, however, that when the widow and the two minors, attaining their majority, having sold and conveyed the land and delivered the possession to purchasers as such, such action amounted to an abandonment of the homestead rights and estate of the widow; and that the rule of repose applies. The writer concurs.
In Bodeker v. Tutwiler,
It was provided by the statute having application (Act February, 1877 [Acts 1876-77] p. 43, § 26) of the estate or property exempt from administration or sale for the payment of debts that, "when a person has a right of homestead under this act, or any other act relating to exemptions, a temporary quitting or leasing the same for a period of not more than twelve months at any one time shall not be deemed to be an abandonment" of it as the homestead. This provision found place as section 2843 of the Code of 1876. In Scaife v. Argall,
The question of abandonment by a conveyance of a homestead right that accrued under the provisions of the Code of 1876 was recently considered in Smith Lumber Co. v. Garry,
The right of exemption that accrued to the widow and minor children is "to be determined by the law in force at the time of the death of" Allen Thompson (Bodeker v. Tutwiler,
And in Chavers v. Mayo,
Such were the decisions prior and after the amendment (section 2539, Code of 1886; Code of 1907, § 4192; Code of 1923, § 7914) section 2843 of the Code of 1876, providing for the filing of a declaration of intention to hold the homestead; any transfer of the possession or leasing of the homestead to another whereby the owner was disabled for a term from returning and occupying at pleasure was per se an abandonment of the homestead right. Trapp v. First National Bank,
The act and conveyance of the widow gave a right of ejectment to the other children of Allen Thompson, deceased, and the peaceable possession of O. M. Thompson and his successor under claim of title, which has existed and been maintained for more than 20 years, is now protected under the rule of repose as against the heirs of Allen Thompson, or the descendants thereof who are complainants to this bill in equity. Trapp v. First Nat. Bank,
The widow of Allen Thompson, deceased, conveyed to the Wrights in 1899, and they conveyed to O. M. Thompson in 1902; and the minors became of age, and they and other brothers conveyed to O. M. Thompson in 1898. O. M. Thompson respectively conveyed these lands in several tracts: 50 acres to A. Thompson, September 26, 1901; 55 acres to Briggs F. Thompson in August or September, 1901; and said grantees, heirs at law, sold to defendant W. J. Johnson in 1911, who moved thereon and improved in 1913; and O. M. Thompson sold the remaining 55 acres to defendant Jim Cantrell in 1901. These grantees and their predecessors in title remained in the continuous, adverse, and uninterrupted possession of their respective lands until the bill was filed February 21, 1927, and thereafter. The rule of repose has intervened (Laird v. Columbia Loan
Investment Co.,
The presumption of title arises in support of a peaceable possession under claim of title for 20 years. Franklin v. Snow,
The result of the decree denying relief to complainants and dismissing the bill is joined in by all of the other Justices, and in which result of affirmance the writer concurs.
Affirmed.
All the Justices concur.