Miller v. Mayer

• Decision Date: 21 November 1899
• Citation: 124 Ala. 434,26 So. 892
• Parties: MILLER ET AL. v. MAYER.
• Court: Alabama Supreme Court

26 So. 892

124 Ala. 434

MILLER ET AL. v. MAYER.

Supreme Court of Alabama

November 21, 1899

Appeal from probate court, Marengo county; S. G. Woolf, Judge.

Application in probate court by M. Mayer, as administrator of the estate of Allen Kornegay, against J. M. Miller, as administrator of the estate of Fred Kornegay, and others, heirs of deceased for leave to sell certain real property of deceased to pay his debts. Application granted, and defendants appeal. Reversed.

Upon the trial of the cause the respondents filed several and separate objections to the questions propounded to the witness seeking to show the necessity of the sale, and also moved the court separately and severally to exclude the answers of said witnesses. The court overruled each of these objections and motions, and to each of such rulings the defendants respectively and separately excepted. The appeal is prosecuted from a decree granting the prayer of the application and ordering the sale of the lands; and the respondents assign as error the several rulings of the trial court to which exceptions were reserved.

In this court the death of Fred Kornegay, one of the appellants, was suggested and leave was granted to revive in the name of J M. Miller, as administrator of the estate of said Fred Kornegay.

Miller & Kirven, for appellants.

Abrahams & Canterbury and Taylor & Elmore, for appellee.

HARALSON J.

Application to sell land to pay debts of an intestate.

"In cases of intestacy, lands may be sold by the administrator for the payment of debts, when the personal property is insufficient therefor." Code, § 156. The application for such purpose must be made by the administrator, verified by affidavit, to the probate court having jurisdiction of the estate, and what the application must contain is prescribed by section 158 of the Code. The burden is on the applicant to "show to the court that the personal property of the estate is insufficient for the payment of debts; and such proof-as to the insufficiency of personal property to pay the debts-must be made by the depositions of disinterested witnesses, and filed and recorded." Section 164. This section does not require the existence of debts to be proved by disinterested witnesses. Alford v. Alford, 96 Ala. 385, 11 So. 316; Garrett v. Bruner, 59 Ala 513. "Whatever the amount of the indebtedness may be, if it exceeds the value of the personalty, it is a proper case for the exercise of the jurisdiction under the statute." Cotton v. Holloway, 96 Ala. 544, 549, 12 So. 172.

On the hearing of such application, if the applicant satisfies the court that the allegations of the petition are true, the court may direct a sale of all or such portion of the real estate as may be necessary to pay the debts; but if they are not proved, the application must be dismissed at the costs of the applicant. Code, §§ 165, 168. Whether the facts averred are true or not, is a matter of legal proof, and must be determined not from the mere opinions of witnesses on the subject. "The proof can be made only by showing the existence and amount of valid debts, and that the available personal assets are not of sufficient value to pay or discharge them." Whether there should be a sale or not is, therefore, a matter of legal conclusion and judgment of the court, founded on facts which have been proved by competent, legal evidence. Quarles v. Campbell, 72 Ala. 64; Davis v. Tarver, 65 Ala. 98.

There were only two persons by whom it was attempted to be shown that the intestate, Allen Kornegay, was indebted at the time of his death, viz., Mayer Bros., of which firm, Morris Mayer, the administrator, was a member, and J. T. Breitling, witness for John C. Webb. As to the first alleged indebtedness, there was evidence allowed to be introduced by the plaintiff, against contestants' objections and exceptions, to show its existence and amount, and evidence was introduced by contestants tending to show that deceased owed that firm nothing, at the date of his death. One of the witnesses, on whom the administrator relied to prove this alleged indebtedness, was H. B. Park, who, it was admitted was a member of the firm of Mayer Bros. during the time the alleged indebtedness is said to have accrued, and up to the time of the trial. The contestants objected to his making proof of said account, among other grounds, because he was called to testify as to transactions had by the firm of which he was a member, with the deceased, as to which he was incompetent to testify. But the court overruled the objection and allowed him to testify as to such transactions, and to prove the correctness of the account. In this there was manifest error. Code, § 1794; Edwards v. Parker, 88 Ala. 356, 6 So. 684; Stanley v. Coal Co., 83 Ala. 260, 4 So. 34; Parker v. Edwards, 85 Ala. 246, 4 So. 612. The only other witness by whom the account of Mayer Bros. was sought to be proved, was Isadore Bley, who deposed that deceased owed said firm the sum of $318.95; but on cross-examination, he showed he was testifying not from his own knowledge but from what he found on the books of the firm, which he did not keep, and really knew nothing of the correctness of the account.

The proof as to John C. Webb's account shows quite satisfactorily, that deceased owed him at the date of his death some seventy-odd dollars, not including interest. If this indebtedness exceeded the...