Curtis v. Hunt

• Decision Date: 14 January 1909
• Citation: 48 So. 598,158 Ala. 78
• Parties: CURTIS ET AL. v. HUNT.
• Court: Alabama Supreme Court

48 So. 598

158 Ala. 78

CURTIS ET AL. v. HUNT.

Supreme Court of Alabama

January 14, 1909

Appeal from Probate Court, Clarke County; Clayton Foscue, Judge.

Application by Eunice H. Hunt, administratrix of James L. England deceased, for sale of real estate to pay debts. Objections of A. B. Curtis and others were overruled, and from an order for sale they appeal. Affirmed.

Miller & Bonner and Wilson & Aldridge, for appellants.

Johnson & Johnson, for appellee.

McCLELLAN J.

This appeal arises from an order entered for the sale of real estate, upon application of personal representatives, to pay debts of the estate of the decedent. Motion to dismiss the appeal is made by appellee upon the ground that the appeal was not effected in 30 days, as required by section 458 subd. 6, Code 1896. That subdivision, so far as necessary to quote, reads: "Upon any issue as to the insolvency of an estate, and upon any issue as to any allowance of any claim against insolvent estates, in which cases the appeal must be taken within thirty days after the determination of such issue." The proceeding at hand itself negatives the existence of any issue of insolvency, as stated in the quoted subdivision. That subdivision has reference only to decrees or orders in a proceeding looking to the adjudication of the insolvency of estates; and the allusion in the subdivision to the allowance of claims in insolvency proceedings has reference to contests of claims in accordance with section 313, Code 1896. The motion to dismiss the appeal is denied.

The jurisdictional averments in an application by a personal representative to sell lands of the decedent to pay debts are "that there are debts of the intestate to be paid and that the personal estate which he left is insufficient to pay them." Garner v. Toney, 107 Ala. 352, 18 So 161, and authorities therein cited. Accordingly the omission from the application of an averment stating which of the heirs or devisees were married women did not affect the jurisdiction of the probate court in the premises, if, indeed, it rendered the application defective (see Poole v. Daughdrill, 129 Ala. 208, 30 So. 579), an inquiry not raised on this record.

Included in the list of debts of the intestate, presented for payment by Mrs. Hunt and Mrs. Vaughan as the only heirs of Mrs. Hutchinson, deceased, who, it is alleged and proven without dispute, paid them, was one to Dr. Evans for medical attention to decedent, amounting to about $48, and one to Gunn for coffin, amounting to about $22, aggregating upwards of $70. There can be no question of the liability of the estate of the decedent to reimburse Mrs. Hunt and Mrs. Vaughan for these debts so paid by Mrs. Hutchinson. Another item of alleged indebtedness, embraced in the presented claim of Mrs. Hunt and Mrs. Vaughan, is a note for $1,500, alleged to have been executed by decedent to Mrs. Hutchinson some years. Against this item the appellants directed their resistance as being a true item of charge on the estate of decedent; and the grounds of this insistence were stated to be that the decedent was at the time the note was executed mentally incapable of contracting, that the note had been paid, and that there was no consideration for it. The major portion of the errors assigned are predicated upon rulings below in the admission or exclusion of proposed evidence bearing on these issues affecting the validity of the note as a charge on the estate and on the allowance or disallowance of interrogatories seeking testimony touching such issues.

If the personal assets of the estate of decedent are only of a value of $20, and the debts, aside from the note mentioned, are at least $70, it is obvious that the controversy in respect of the validity of the note as a charge against the estate is, in the absence (as is the case here) of any objection to the propriety of a sale of all the land, when a comparatively small quantity thereof would have sufficed to pay the debts mentioned (Miller v. Mayer, 124 Ala. 437, 26 So. 892), wholly immaterial in the present proceeding, for the reason that the personal assets of the estate are insufficient to pay the debts, even when unenhanced, in the aggregate, by the amount of the note. If so, whatever errors (if any) intervened with reference to the issues raised against the note were harmless to appellants, since an order of sale might have been entered upon such state of proof, notwithstanding the note was not a valid charge against the estate. So we pretermit entirely consideration of the questions involved in the contest of the note as an element of indebtedness against the estate.

The indebtedness being at least $70, the only point of controversy important, in our view of the case, is the value of the personal assets, including what such assets were. The decree of sale appealed from rests the finding of the fact viz., the insufficiency of the personal assets to pay the debts of the estate, upon the testimony of Eliza Borum, James McDonald, Mike Morgan, Preston Slater, and Mrs. E. H. Hunt. Mrs. Hunt was the administratrix of the estate, and was hence not a disinterested witness, within the meaning of sections 164 and 167 of the Code of 1896. Stevenson v. Murray, 87 Ala. 442, 6 So. 301. But to her competency as a witness in the proceeding no objection was made by the contestants on the hearing, nor, of course, is there any error assigned upon such competency of the personal representative to testify in the premises. We have considered...