Huffstedler v. Kibler

• Citation: 54 S.W. 210,67 Ark. 239
• Parties: HUFFSTEDLER v. KIBLER
• Decision Date: 02 December 1899
• Court: Supreme Court of Arkansas

54 S.W. 210

67 Ark. 239

HUFFSTEDLER v. KIBLER

Supreme Court of Arkansas

December 2, 1899

Appeal from Randolph Circuit Court, JNO. B. MCCALEB, Judge.

Affirmed.

S. A D. Eaton, for appellants.

The land was the homestead of the appellant's ancestor at the time of his death. 41 Ark. 309; 55 Ark. 55; 56 Ark. 621. The sale by the administrator was void, because: First. The probate court had no jurisdiction to order the sale of the homestead to pay debts. 47 Ark. 454; Fr. Void Jud. Sales, 35; Thompson, Hom. & Ex. 546. The administrator was not even a proper party. 35 Ark. 24. Second. Even if such sale would be made to pay certain privileged debts, it would not be made to pay others not so privileged, but which are mingled with the privileged one. 52 Ia. 620; 89 N. Car. 396; 30 Minn. 84; ib 259.

P. H Crenshaw, for appellees.

The probate court had jurisdiction. Sand. & H. Dig., § 110; 18 Ark. 334; 113 U.S. 604; 39 Ark. 577; 23 Ark. 604; 33 Ark. 658; 45 Ark. 495; ib. 229; 49 Ark. 76; 51 Ark. 361. It would not have altered the rights of the parties if the guardian had chosen to settle by note and judgment had been rendered thereon. 45 Ark. 108; 46 Ark. 43; 51 Ark. 84.

BUNN, C. J. BATTLE, J., absent.

OPINION

BUNN, C. J.

This is a suit, originally in ejectment, by Laura K. Huffstedler and Donald B. Alcorn, children and heirs at law of Hamlet F. Alcorn, deceased, to recover the lands mentioned from appellees, Nancy M. Kibler and her husband, M. H. Kibler, and Columbus McIlroy; and subsequently in the progress of the cause, at the instance of defendants, it was transferred to the equity docket, and the chancellor dismissed the bill for want of equity, and plaintiffs appealed.

Hamlet F. Alcorn died in 1873, seized of an estate in fee in the southeast fractional quarter of section 31, township 20 north, range 1 west, in Randolph county, Arkansas, and occupying the same as his homestead. He left surviving him the plaintiff, Laura K. Huffstedler, by his second wife, and Donald B. Alcorn, by his third wife. The first wife of Hamlet F. Alcorn was Margaret, the daughter of Fielding Stublefield, who died in 1862, leaving the following children by her husband, to-wit: William L., known as "Lawrence;" Margaret A., known as "Ann;" Joseph; and Israel, known as "James." They were living during the pendency of this suit in the trial court, and Hamlet F. Alcorn became their statutory guardian after their mother's death. These children inherited from their grandfather, Fielding Stublefield, a certain interest in his real estate, and this had been sold by a commissioner of court for the purpose of partition between them and the other heirs of their deceased grandfather, and the proceeds coming to them were paid over to their father and guardian, who became responsible therefor as such, and had this fund in hand when he died in 1873. Hamlet F. Alcorn had occupied the land in controversy for a long time, until a little while before his death, which occurred at the house of a neighbor. It does not appear that he had abandoned the land as his homestead. Indeed, that it was his homestead until his death is not seriously controverted. O. G. Frey became his administrator, and in due course, by order of the probate court, sold his homestead land to pay the debts owing to his said wards, which were duly probated against his intestate's estate. These debts, together with expenses of administration, were substantially all that were probated against the estate, so far as the record shows. The plaintiffs in this suit claim the land in controversy as heirs of their father, Hamlet F. Alcorn; contending that the sale of his homestead by his administrator to pay debts was illegal and void. The defendant, M. H. Kibler, purchased the land at the administrator's sale, and conveyed the same afterwards to his wife, Nancy M. Kibler, and she to McIlroy, and they claim that the administrator's sale was legal, because it was to pay debts from which the homestead was not exempt. This is the sole question in this case.

It is contended by appellants that a chancery court, and not the probate court, would have been the proper tribunal in which the privileged debts should have been adjudicated; that the homestead was not assets in the hands of the administrator and therefore was not subject to sale by order of the probate court,--citing McCloy v. Arnett, 47 Ark. 445, 2 S.W. 71, in which the sale was ordered to pay ordinary debts, and therefore it is not in point in this case. In Gilbert v. Neely, 35 Ark. 24, also cited by appellants, it is said by this court (after discussing the subject of the construction of the homestead provisions in the constitution of 1868): "The widow and...