Kilgore v. Kilgore

• Decision Date: 20 June 1894
• Citation: 15 So. 897,103 Ala. 614
• Parties: KILGORE v. KILGORE ET AL.
• Court: Alabama Supreme Court

15 So. 897

103 Ala. 614

KILGORE v. KILGORE ET AL.

Supreme Court of Alabama

June 20, 1894

Appeal from chancery court, Walker county; Thomas Cobbs, Chancellor.

Action by James Kilgore and others against Robert Kilgore to set aside a deed and for partition of land. Defendant moved to dismiss the bill for want of equity. The motion was denied and defendant appeals. Affirmed.

The bill in this case was filed on May 17, 1893, by the children and grandchildren of William Kilgore, deceased, and Margaret Kilgore, his wife, against Robert Kilgore. The complainants and the respondent are all the heirs of the said William Kilgore. The allegations of the bill are sufficiently stated in the opinion. The prayer of the bill was, that a deed executed from Margaret Kilgore to Robert Kilgore, the respondent, be canceled and annulled as a cloud on the title to the land of which the said William Kilgore died seised and that said land be decreed to be sold for partition among the complainants and the respondent, as joint tenants thereof. The appellant moved to dismiss the bill for the want of equity, and upon the submission of the cause upon this motion the chancellor adjudged that the motion was not well taken, and decreed that the same be overruled. The appellant brings the present appeal, and assigns as error this interlocutory decree of the chancellor.

Coleman & Sowell, for appellant.

Appling McGuire & Collier, for appellees.

HARALSON J.

1. The intestate, William Kilgore, died, 6th of December, 1881 leaving a widow and one minor child, the defendant, Robert Kilgore. His estate consisted of his homestead, in which there were 140 acres of land, of value less than $2,000, and personal property less in value than $1,000. Under the law which existed at that time (section 2821 of Code of 1876), such a homestead and the personal property, were exempted from the payment of debts, contracted after the 23d of April, 1873, in all cases during the life of the widow, and the minority of the child,-the personalty to be delivered to the widow, to be employed by her in the maintenance of herself and her minor child, and the homestead exempted for their benefit, to be retained by the widow, until it was ascertained whether the estate was solvent or insolvent, and, if the estate was insolvent, it vested in her and her child absolutely. Code, 1876, §§ 2826, 2827. The ascertainment of insolvency contemplated by the statute, was a regular declaration of insolvency by proceedings in the probate court,-judicial ascertainment according to the statutory practice regulating such a proceeding. Munchus v. Harris, 69 Ala. 506; Baker v. Keith, 72 Ala. 127; Smith v. Boutwell (Ala.) 13 So. 569; De Armond v. Whitaker, Id. 615.

2. It is shown by the bill, that the intestate, William Kilgore, died, owing no debts contracted by him to be paid by an administrator; that on the application of his widow, his estate was administered on by the then general administrator of the county, one R. H. Smith, for the purpose of collecting a debt of $200 due to decedent, at his death, by one H. A. Lollar, which, without administration, could not be collected, and that no claims against the estate were ever presented to said administrator for payment. It is further averred, that in 1883, on the written application of said widow, to the probate court of Walker county, the lands described in the bill, by the order and decree of said court, were set apart to her and her minor son, Robert, the defendant, as a homestead, and all the personal property, belonging to the said estate, including the $200 in money, which had been collected by the administrator from said Lollar, except just enough of that money to pay the costs and expenses of the administration,-was also set apart to said widow and minor son, as exempt to them, leaving no property belonging to said estate, to be administered, and no debts contracted by the decedent, to be paid by said administrator.

3. It is further made to appear, that said administrator, on the 27th of August, 1889, filed his application in the probate court, in which he gives a list of the real and personal property of his intestate, showing that the lands were 140 acres, and less in value than $2,000, and the personal property,-including said $200 collected on the only debt due his intestate,-was of value less than $1,000, all of which property, real and personal, he stated, was exempted to the widow and minor child, except such part of the said $200, as it look to pay costs and expenses of administration, leaving as he stated "nothing to pay any debts." The only creditor on the list of creditors filed, was Mrs. Kilgore the widow, who is put down as claiming $155. On this showing, he asked the court to declare the estate insolvent, and the court appointed the 7th day of October, following, to hear and determine the matter; and on that day, as it would seem, from the recitals,-"none of the creditors of said estate [of whom it was not shown there were any], and none of the heirs of decedent, William Kilgore, appearing or contesting said report,"-it was ordered that said estate be, and it was declared insolvent; and, it was further ordered, that said administrator file his accounts and vouchers for a final settlement on the _____ day of November, 1889. On that day he filed his account and vouchers, showing that he had received $200 and paid out a like sum, and had turned over and delivered to the widow for the use of herself and minor child, the defendant, all the personal property of the estate. His account shows, he paid the whole of this $200 in cash, less the costs and expenses of administration,-the balance amounting to $150,-to Mrs. Kilgore for herself and minor child, on the 14th day of December, 1883. We have presented, therefore, the unheard-of proceeding of the estate of an intestate, who owed no debts, being reported to and declared insolvent by the probate court. It bears on its face the evidence of collusion between the widow and the administrator, if not of the minor child, who is shown to have been of age at the filing of this bill, to procure a judicial ascertainment and declaration of insolvency, when the estate was solvent, in order to vest the fee in this homestead in her and her minor son. As...