Flowers v. Reece
| Decision Date | 01 November 1909 |
| Citation | 123 S.W. 773,92 Ark. 611 |
| Parties | FLOWERS v. REECE |
| Court | Arkansas Supreme Court |
Appeal from Garland Chancery Court; Alphonso Curl, Chancellor reversed.
STATEMENT BY THE COURT.
This is an action instituted by John H. Reece, administrator of the estate of King B. Flowers, deceased, against Matt Picchi Vincent Picchi, Dominick Picchi, B. C. Truman and Amanda Truman upon bonds alleged to have been executed by them as the purchase price for real estate purchased by them at administrator's sale.
Josephine Flowers, a minor and the sole heir at law of the said King B Flowers, deceased, and Linnie Blewett, the mother and guardian of said minor, were also made defendants to the suit.
The defendants answered, and by way of cross complaint set up facts which, briefly stated, are as follows: King B. Flowers died May 6, 1898, and Henry Flowers was appointed administrator of his estate. King B. Flowers left surviving him his widow, Linnie Flowers, now Linnie Blewett, and his daughter, Josephine Flowers, born after his death. Henry Flowers purchased the unassigned dower interest of said widow while he was administrator of said estate. Afterwards he was removed as administrator, and John H. Reece was appointed administrator to succeed him.
King B Flowers, deceased, had in his lifetime executed a mortgage on a part of his real estate to one J. R. White. After his death the mortgage was foreclosed, and the property was sold for $ 3,830.07 more than the amount of the mortgage debt and costs of foreclosure, and this sum was paid over to said John H. Reece as administrator.
Henry Flowers instituted suit in the Garland Chancery Court against the widow, then Linnie Simons, Josephine Flowers, the only child, and John H. Reece, the administrator of the estate of King B. Flowers, deceased, to recover and have assigned to him the dower interest of said widow in said estate. The defense was interposed that the conveyance of the said dower interest was procured by fraud. The chancery court granted the prayer of the complaint and made an allotment of dower. The cause was appealed to this court, and the decree in that respect was affirmed. A report of the case will be found in 84 Ark. 557 (Flowers v. Flowers). In addition to certain tracts of land allotted to him, the chancery court decreed to said Henry Flowers one-third of the residue of the proceeds of sale under the White mortgage for the life of the widow of said King B. Flowers, deceased.
On February 29, 1908, the probate court of Garland County ordered certain town lots belonging to the estate of King B. Flowers, deceased, to be sold by John H. Reece, administrator of said estate, for the purpose of paying the balance due Henry Flowers for the dower interest in the funds arising from the sale under the White mortgage foreclosure and for the purpose of paying certain costs allowed the said Henry Flowers in the proceedings to allot dower.
At the administrator's sale Matt and Vincent Picchi bid off and became the purchasers of one tract, and asked that the deed be made in the name of Dominick Picchi, and executed a bond for the purchase price, and B. C. Truman bid off and became the purchaser of the other tract, and asked that the deed be made in the name of Amanda Truman, and executed a bond for the purchase price.
The sale was confirmed by the probate court, and deeds ordered to be made and delivered to the purchasers upon payment of the purchase price. The purchasers refused to pay the purchase price on the ground that the probate sale of the lands was void, and offered to restore possession of the lands to the administrator. To the answer and cross complaint the plaintiff interposed a demurrer, which was by the court sustained, and, the defendants refusing to plead further, a decree was entered dismissing the answer and cross complaint for want of equity and rendering judgment in favor of the plaintiff for the amount of the bonds.
The defendants have appealed.
Reversed, and cause remanded with directions to overrule the demurrer.
J. A. Stallcup and A. J. Murphy, for appellant.
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 the administration, and not debts of decedent, without more, is void. 74 Ark. 81; 129 U.S. 86; 58 L. R. A. 641. The lands, if sold at all, must be sold for the purpose of paying debts. 58 L. R. A. 641; 23 O. St. 520; 52 Pa.St. 370; 24 Mo. 16; 2 Barb. Ch. 161; 49 Ill. 465; 79 Ill. 473; 2 Mass. 150; 4 Mass. 354; 52 Ark. 320; 51 Miss. 206.
Geo. G. Latta, for appellee.
The order of sale is presumed to be regular, and is not subject to collateral attack. 70 Ark. 88. A sale of real estate made under an order without notice is not void, and will upon its confirmation divert title from the heirs. 31 Ark. 74. The same is true in case of failure to appraise. 38 Ark. 17. A sale of a deceased person's real estate under an order of court conveys the legal title, although the proceedings were irregular. 13 Ark. 117; 23 Ark. 121.
HART, J., (after stating the facts.)
This case is ruled by the case of Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S.W. 1044. In that case it was held (quoting syllabus):
1. "Under Kirby's Digest, § 186, providing that 'lands and tenements shall be assets in the 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.
2. "While the probate court is a superior court, its judgments are void if they show on their face that the court was acting beyond its jurisdictional limits.
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 afterwards confirmed."
In the present case the assignee of the widow of decedent was allotted dower in the...
To continue reading
Request your trial
-
Kulbeth v. Drew County Timber Company
...defendant plead the statute of limitations. 3. The probate sale was not void. This was a collateral attack. 121 Ark. 474; 118 Ark. 449; 92 Ark. 611. The records of probate court are not before this court; the presumption of regularity is against the appellant. 103 Ark. 574; 92 Id. 616. The ......
-
Stinger v. Keith (In re Stinger's Estate)
...S. C. 196, 95 S. E. 351;Franzell v. Franzell, 153 Ky. 171, 154 S. W. 912;Buskirk v. Sanders, 70 W. Va. 363, 73 S. E. 937;Flowers v. Reece, 92 Ark. 611, 123 S. W. 773;Earle v. Coberly, 65 W. Va. 163, 64 S. E. 628, 17 Ann. Cas. 479. It is urged that the claim should not be allowed for the rea......
-
In re Stinger's Estate
...109 S.C. 196, 95 S.E. 351; Franzell v. Franzell, 153 Ky. 171, 154 S.W. 912; Buskirk v. Sanders, 70 W.Va. 363, 73 S.E. 937; Flowers v. Reece, 92 Ark. 611, 123 S.W. 773; Earle v. Coberly, 65 W.Va. 163, 64 S.E. 628, 17 Cas. 479. It is urged that the claim should not be allowed for the reason t......
-
Tompkins v. Tompkins
...sums adjudicated in favor of appellee were not included in that report. The probate court judgment is not subject to collateral attack. 92 Ark. 611; 73 Ark. 612; 52 Ark. 341. David L. King, for appellee. Appellee is seeking to enforce a legal remedy, and the pleas of laches and limitation a......