Miller v. Davis

• Court: Supreme Court of Arkansas
• Writing for the Court: RIDDICK, J.
• Citation: 64 S.W. 97,69 Ark. 1
• Parties: MILLER v. DAVIS
• Decision Date: 03 February 1900

64 S.W. 97

69 Ark. 1

MILLER
v.
DAVIS

Supreme Court of Arkansas

February 3, 1900

Appeal from Lawrence Circuit Court in Chancery, Western District, RICHARD H. POWELL, Judge.

STATEMENT BY THE COURT.

This is an action by two of the children and minor heirs of A. J. Cravens, to recover a tract of land owned and occupied by him as a homestead at the time of his death, which occurred about 1870. After his death the land was, by order of the probate court, sold to pay debts of his estate, and the appellant, John Miller, Jr., claims under such sale. This sale was made during the minority of some of the children of Cravens. The circuit court held that the probate court had no right to sell the homestead of the minors, and that such sale was void. Judgment was therefore rendered in favor of plaintiffs.

Judgment affirmed.

P. H. Crenshaw, for appellant.

The homestead was not exempt from sale for debts of a fiduciary nature. Const. Ark. (1868) sec. 3, art. 12; 35 Ark. 24; 53 Ark. 303; 56 Ark. 555; 54 S.W. 210. The question of exemption is settled when the debt is created. 42 Ark. 385; 46 Ark. 43; 51 Ark. 84; 45 Ark. 108.

Phillips & Campbell, for appellee.

As there is no final order in this case, the appeal should be dismissed. Sand. & H. [69 Ark. 2] Dig. § 1016. On the death of one indebted for trust funds, the claim for such funds must be duly authenticated, allowed and paid, as other demands. 23 Ark. 604; 39 Ark. 577; 45 Ark. 299.

OPINION

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

It has been settled by repeated adjudications in this state that the probate court has no jurisdiction to order the sale of the homestead for the payment of the ordinary debts of the estate. This was the law under the constitution of 1868. as well as under our present constitution. Bond v. Montgomery, 56 Ark. 563, 20 S.W. 525; Burgett v. Apperson, 52 Ark. 213, 12 S.W. 559; McCloy v. Arnett, 47 Ark. 445; Booth v. Goodwin, 29 Ark. 633.

The homestead does not go to the administrator as one of the assets of the estate for the payment of debts, but, after the death of the owner thereof, passes to his widow and children, to be held by them exempt from the debts of the estate during the period provided by law. If, during this period, the probate court attempts to sell it for the payment of the debts of the estate, the sale, as a general rule, is void. To this [69 Ark. 3] rule there are exceptions, and one of them is that the homestead is not exempt from sale for debts due in a fiduciary capacity. Gilbert v. Neely, 35 Ark. 24. As to such debts, there is no homestead exemption. But, as the jurisdiction of the probate court to order the sale of the homestead is limited to exceptional eases when the debts for the payment of which the sale is ordered are of a certain kind, the burden in an action of ejectment rests on the party claiming the homestead land under such a sale to show that it was made for the payment of a privileged debt. Anthony v. Rice, 110 Mo. 223, 19 S.W. 423. It is not enough to show that among the debts of the estate there were fiduciary or privileged debts for which the homestead might have been sold. It must appear from the record of the proceedings in the probate court or in some other legitimate way that the order for the sale of the homestead was in fact made for the purpose of paying such a debt. As probate judges in this state are not required to be learned in the law, the substance, rather than the form, of the record will be regarded, but there should...