Miller v. Davis

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

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. 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 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 be enough to show that the debt for which the homestead is ordered sold is one for the payment of which it is not exempt. Howe v. McGivern, 25 Wis. 525; Daudt v. Harmon, 16 Mo.App. 203; 1 Woerner, Administration, § 102.

Now, it appears from the testimony in this case that among the debts probated against the estate of Cravens were debts which he owed as guardian for funds in his hands belonging to his wards. But there does not seem to have been any petition filed or order made to sell the homestead for the special purpose of paying these fiduciary debts. So far as the record discloses, there was no finding or judgment of the probate or other court that Cravens owed debts as a trustee, and no order made for the sale of the homestead to pay such debts. The estate owed many debts besides these trust debts, and the homestead, with the other lands of the estate, was ordered sold to pay the debts of the estate generally. Although it was shown that a portion of the debts for which the homestead was sold was trust debts, the evidence did not show that the other debts for the payment of which the homestead was sold were debts for which the homestead was liable. It is true the administrator, Mr. Thornburgh, testified that "a large part of the indebtedness" of the estate was of a fiduciary character, and that the judgments against the estate on account of such debts "amounted to more than the available assets of the estate outside of the lands." Counsel for appellant, in their brief on motion to rehear, call attention to the claims which this witness said were fiduciary debts, and then proceed to say that "there is nothing in the transcript to show that any of the other claims were not fiduciary debts." But the amount of these claims, the nature of which, counsel say, is not shown in the transcript, is considerable. The total amount of the claims probated against the Cravens estate was something over $...