Harper v. Wisner
| Decision Date | 18 December 1916 |
| Docket Number | 50 |
| Citation | 190 S.W. 569,126 Ark. 443 |
| Parties | HARPER, ADMR., v. WISNER |
| Court | Arkansas Supreme Court |
Appeal from Randolph Circuit Court; J. B. Baker, Judge; affirmed.
Judgment affirmed.
S. A D. Eaton, for appellant.
1. The order of sale should not have been granted. No notice was given as prescribed by law. Kirby's Digest, § 195. Mere informalities do not vitiate so long as they do not mislead. 20 Cyc. 1117.
2. No inventory of the personal estate was ever filed. 64 Kans 254.
3. No debts had been probated against the estate. It is not necessary, Kirby's Digest, § 187; 77 Am. Dec. 340. There was a valid lien on the land--it was due. 78 N.E. 71; 40 Cyc. 1710. Appellees must pay this indebtedness. 40 Cyc 1683.
4. There was sufficient personal property to pay the debt. The jurisdiction of the probate court rested upon the allegations of the petition. 76 Am. Dig. 551; 18 Cyc. 751. The judgment was in rem. 44 Ark. 267. The order confirming the sale is final. 31 Ark. 75; 47 Id. 413; 18 Cyc. 733. The judgment was a final order and no appeal was taken. 20 Ark. 652; 23 Id. 39 47 Id. 413; 53 Id. 113; 38 Id. 78; 99 Id. 327. The sale could only be set aside by appeal. 53 Ark. 113; 38 Id. 78.
5. Richardson's rights, the purchaser, must be respected. 86 Ark. 255; 108 Id. 370. The confirmation relates back to the date of the sale and the purchaser was the owner from that date. 99 Ark. 327. The judgment should be reversed and the action dismissed.
J. W. Meeks, T. W. Campbell and W. L. Pope, for appellee.
1. The trial was before the circuit court de novo. 38 Ark. 392; 26 Id. 533.
2. The land was not described. The law was not complied with. The petition was properly denied. Kirby's Digest, §§ 187, 195. A claim must be presented for allowance. Croswell Ex. & Adm., p. 337; 18 Cyc. 451; Kirby's Digest, §§ 113, 114. The statutes must be substantially complied with. 65 Ark. 1; 66 Id. 327; 69 Id. 62; 97 Id. 546.
3. The will created a condition subsequent not precedent. 4 Kent Com., 122-133; 40 Cyc. 1695. When the takers fail or refuse to perform the condition, the land goes to the heirs. 78 N.E. 972; 9 L. R. A. 167, notes; 12 A. & E. Am. Cas. 224; 4 Kent. 122-133.
4. This is an appeal and not a collateral attack. All irregularities can be taken advantage of. 31 Ark. 75; 47 Id. 413.
5. The probate court had only such jurisdiction as is conferred by statute and the law must be complied with. No notice was given as prescribed by law.
Joe A. Harper as administrator with the will annexed of the estate of Nannie W. Harper, deceased, prosecutes this appeal to reverse a judgment of the circuit court setting aside a judgment of the probate court ordering the sale of decedent's lands to pay debts. The material facts are as follows:
On March 2, 1915, Joe A. Harper was appointed administrator with the will annexed of the estate of Nannie W. Harper, deceased. On April 15, 1915, he filed his application for an order to sell a certain forty acres of land belonging to the estate of Nannie W. Harper, deceased, for the purpose of paying off a mortgage which she in her lifetime had executed on said lands and which indebtedness was unpaid at the time of her death. In his petition the land was definitely described in the application for the sale of it. The application bears the following endorsement:
Prior to this time the administrator had given no notice whatever of his intended application for the sale of the land. After this time a notice was published in a newspaper published in the county on April 30, 1915, May 7, 1915, May 14, 1915, May 21, 1915, May 28, 1915, stating that a petition had already been filed in the probate court praying an order for the sale for a certain described tract of land. This notice described a different tract of land from that described in the application. At the July, 1915, term of the probate court an order was made by said court granting the petition and ordering the sale of the land described in it. At that time no claims whatever had been probated against the estate. The land was sold pursuant to the order of the probate court and a report of sale was made and approved by the court at its October term, 1915. The administrator was directed in the order to collect the amount of sale and settle for the same at the January, 1916, term of the probate court. An appeal from the judgment of the probate court ordering the land sold was prayed by the heirs and legatees of decedent and granted by the probate court within the time allowed by law.
The circuit court held that the probate court cannot lawfully make an order authorizing administrators to sell the lands of an estate unless prior to his making application therefor he has given the notice required by section 195 of Kirby's Digest, and unless the debts for which the order of sale is made have been duly probated against the estate as above stated. The circuit court rendered a judgment denying the application of the administrator to sell the lands and setting aside the judgment of the probate court. The administrator has appealed from the judgment of the circuit court.
It may be noted at the outset that this is a direct and not a collateral attack on the judgment of the probate court ordering the lands to be sold. Section 195 of Kirby's Digest reads as follows:
"No order for the sale of lands and tenements for the payment of debts shall be made by the court, unless it shall appear to the satisfaction of the court that notice of the intended application for the sale of such lands and tenements has been given, at least four weeks before making such application, in some newspaper printed in the county where the lands lie, if there be any printed in such county, and, if none, by advertisements set up in at least six of the most public places in such county."
The probate court is authorized by statute to make orders for the sale of lands of the estates of deceased persons, but the order of the sale can only be made in the manner and for the purposes prescribed by the statute. Planters' Mutual Insurance Association v. Harris, 96 Ark. 222, 131 S.W. 949.
In the case of Rogers v. Wilson, 13 Ark. 507, the administrator applied for and obtained an order of the probate court empowering him to sell certain lands belonging to his decedent's estate without giving the notice required by statute. In that case relief was denied because no appeal was taken from the judgment of the probate court ordering the land sold and the action was a collateral attack on the judgment. In that case, however, the court said that it was clearly erroneous to have granted the order for the sale of the real estate without first having given the notice required by the statute, but the court said that the order was not void, because it was made in a proceeding in rem, for the sale of real estate, which, by our statute, is made assets in the hands of the administrator, and over which, by petition, the probate court had jurisdiction.
In the case of Montgomery and Wife v. Johnson et al., 31 Ark. 74, which was also a collateral attack on the judgment of the probate court ordering the sale of decedent's lands, the court said, ...
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