Hoshall v. Brown

• Decision Date: 22 January 1912
• Citation: 143 S.W. 1081,102 Ark. 114
• Parties: HOSHALL v. BROWN
• Court: Arkansas Supreme Court

143 S.W. 1081

102 Ark. 114

HOSHALL v. BROWN

Supreme Court of Arkansas

January 22, 1912

Appeal from St. Francis Circuit Court; J. S. Thomas, Special Judge affirmed.

STATEMENT BY THE COURT.

On June 4, 1902, Henry P. Gorman, administrator in succession of the estate of Hiram Evans, deceased, acting under an order of the probate court, made a sale of certain lands belonging to said estate for the payment of debts which had been duly probated and allowed by the probate court. The sale was confirmed by the probate court, and an appeal was taken to the circuit court, where the sale was again confirmed. In both the probate and circuit courts exceptions were filed by the appellants to the report of the sale. These exceptions raised no objection to the regularity of the proceedings of the administrator in making the sale. It is not anywhere contended that the administrator did not pursue the orders of the court directing him to make the sale, or that he did not follow the requirements of the statute as to notice appraisement, etc. The exceptions challenged the validity of the orders of the probate court allowing the claims against the estate of Hiram Evans, deceased, for the payment of which the order of sale was made, and to pay which the lands were afterwards sold under the orders of the probate court.

It is insisted in the various exceptions, which we deem it unnecessary to set out here, that the orders of the probate court allowing certain claims as expenses of the administration, and certain other claims as demands against the estate, were illegal and void for the reasons set up in the various exceptions.

The appellees asked and were permitted to be made parties to the proceeding for the confirmation of the sale. They filed a plea of res judicata. The appellants asked that the questions raised by their exceptions to the report of sale and their objections to the confirmation thereof be tried by a jury which the court refused.

The court proceeded to hear the issues submitted upon the exceptions and the plea of former adjudication on the evidence that was introduced by both parties and affirmed the judgment of the probate court and confirmed the sale. Appellants filed a motion for a new trial in which they set up, among other things, that the court erred in confirming the sale, notwithstanding that there was newly discovered evidence in the record, since the order of the probate court confirming the sale was made, which clearly showed that the lands had been sold to pay debts of a drug store which belonged to the firm of Marcus Collins and John J. Evans, and which was not the property of Hiram Evans at his death (April 13, 1891), and never had been; also that the court erred because when the order of sale was made no administrator of the estate had filed a settlement which had been confirmed or recorded by the probate court; and because the probate court had never found, upon a settlement of the administrator's account, what amount of assets were in his hands, or that the personal property left by Hiram Evans was insufficient for the payment of his debts at the time of his death; and because the petition for the sale by the administrator did not state the amount of the assets in his hands to pay claims, nor the amount of the assets which had gone into the hands of his predecessor, who had died without making a settlement of his account; and because it had never been made to appear that all of the other assets except the land had been properly applied in payment of claims against the estate.

The motion for a new trial also set up that "the court erred in holding that it had no right to inquire into the illegality of the proceedings of the probate court, and no right in an appeal case to pass upon questions of fraud arising from the probate court proceedings." And further alleged that the court erred "in holding that the decree of the probate court ordering the sale of the lands of Hiram Evans's estate was conclusive as to the validity of the debts in controversy and as to the insufficiency of the personal estate to pay them, and that the heirs were bound by said decree of the probate court."

Judgment affirmed.

J. R. Beasley, for appellants.

1. Probate sales must be in substantial compliance with our statutes; otherwise they are at least voidable. Kirby's Digest, § 3793. Jurisdictional facts must be stated and appear of record. 13 Cal. 288; 1 Hill (N. Y.) 133; Redf. L. & P. Sur. Ct. 618; 22 Ark. 118; 48 Id. 151; 55 Id. 562; 60 Id. 369.

2. Fraud vitiates all contracts, even judicial sales. 22 Ark 222; 33 Id. 425; 40 Id. 189; 9 Wheat. 532; 1 Ch. Pl. (16 Am. Ed.) 608; 34 Ark. 63; 20 Id. 309; 2 Bl. Com. b. 3, § 432; 13 Ark. 512; 1 Pet. 328; 60 Ark. 369; 33 Id. 425; 55 Id. 562.

3. The court which first obtains jurisdiction * * * must proceed to judgment, and can not be ousted by subsequent proceedings in another court having no supervisory or appellate authority. 36 F. 337; 7 How. 612; 16 Ohio 373; 49 Ark. 75; 88 Id. 153.

4. The only legal way to sell the assets of a decedent's estate is to follow the statute. Kirby's Digest, § 154-9; 53 Ark. 559.

5. This court always cures jurisdictional defects in all lower courts. 52 Ark. 341. The history of Arkansas is written in the story of the wreck of dead men's estates through the ignorance of probate judges. 52 Ark. 341.

6. The personal property must be exhausted before the real estate can be sold. 33 N.Y.S. 389; 127 N.Y. 296; 13 Ark. 507.

7. No settlement of the estate has ever been made. No debts can be created after death. 34 Ark. 211; 17 Id. 567; 56 Id. 159.

8. Claims illegally exhibited or allowed are subject to review and cancellation, even on collateral attack. 60 Ark. 327; Kirby's Digest, §§ 115, 84, 221-3; 56 Ark. 159.

9. The question raised here has never been determined in any former suit. 65 Ark. 467. There is no question of estoppel. 34 Ark. 63; 22 Id. 572; Coke, Lyt. vol. 3, 467-8; 36 Ark. 96; 11 Id. 264; 43 Id. 21; 15 Id. 319; 30 Id. 385; 40 Id. 26; 16 Pet. 62.

R. J. Williams and Norton & Hughes, for appellee.

1. If the administrator's report shows a sale in compliance with the order of court after proper appraisement and notice, the confirmation is invulnerable, except for fraud, accident, mistake, etc. Jackson v. Gorman, 70 Ark. 88. The words "without prejudice" mean no bar to the assertion of any legal right, and the question of fraud is not barred by any statute. 70 Ark. 88.

2. Res judicata. 76 Ark. 423.

3. The appeal should have been dismissed.

4. Lands can not be sold solely to pay expenses of administration. 92 Ark. 611; 74 Id. 81.

5. When heirs assent to irregularities, they can never complain. 163 Mass. 174; 5 Humph. 524; 78 Va. 111.

OPINION

WOOD, J., (after stating the facts).

In Jackson v. Gorman, 70 Ark. 88, 66 S.W. 346, the order of sale of July 21, 1897, was held to be valid. The appellants in this case were parties to that suit. In their amended answer and cross bill to the petition for the new order of sale made in the probate court, which they were resisting, they attack the order of sale of July 21, 1897. This court, in that case, speaking of that order of sale, said:

"The probate court had acted, and, presumptively, upon the proper showing made, and the term had passed without objection raised. The conclusion is that everything was properly done."

This decision settles the question raised by the appellants as to the validity of the order of sale.

We deem it unnecessary to set out and discuss in detail the various exceptions presented in the probate court and in the circuit court to the confirmation of the sale made by the probate court, for, in our opinion, Jackson v. Gorman, supra, settles also adversely to them the various objections urged by appellants to the confirmation of the sale. In that case this court said:

"The amended answer and cross bill is mainly an attack upon the validity of the order of the probate court allowing the claims against the estate under the administration of James Evans, now also deceased, and made years ago. These allowances are in the nature of judgments, and after the expiration of the term are not within the control of the probate court. It follows that to attack them in the probate court would be in violation of all rules on the subject. The circuit court, on appeal, can have no other issues before it than had the probate court from which the appeal is taken. These judgments of the probate court, moreover, were final after the expiration of the term at which they had been rendered, and could not be reopened by the probate court, and could only be called in question by appeal or by original bill in chancery on the allegation of fraud, accident or mistake."

In the earlier case of Carter v. Engles, 35 Ark. 205, this court held that "the allowance of a claim in the probate court has the force and effect of a judgment." This court in that case also pointed out that where the allowance of a claim was procured by fraud between the creditor and the administrator, the remedy to parties interested was by appeal from the judgment of allowance, or, if the term had ended, by a proceeding in equity to set aside for fraud on the court in procuring the allowance. See other cases cited in the opinions above mentioned.

Kirby's Digest, § 125, provides: "The probate court shall have power to hear and determine all demands against any estate made agreeably to the provisions of this act, and cause a concise entry of the allowance to be made on the record, which shall have the same force and effect as a judgment."

This court, as early as 1843, in Dooley v Watkins, 5 Ark. 705, in passing upon a similar provision, held that the allowance of a claim by the probate court has the force and...