Harper v. Wisner
| Decision Date | 18 December 1916 |
| Docket Number | (No. 50.) |
| Citation | 190 S.W. 569 |
| Parties | HARPER v. WISNER et al. |
| Court | Arkansas Supreme Court |
Appeal from Circuit Court, Randolph County; J. B. Baker, Judge.
In the matter of the estate of Nannie W. Harper, deceased. From judgment of probate court ordering lands sold on application of Joe A. Harper, administrator, James M. Wisner and others appealed to the circuit court. From judgment of circuit court denying the application of the administrator to sell and setting aside the judgment of the probate court, the administrator appeals. Affirmed.
S. A. D. Eaton, of Pocahontas, for appellant. J. W. Meeks, T. W. Campbell, and W. L. Pope, all of Pocahontas, for appellees.
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 40 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 indorsement:
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, and 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...
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