Planters' Mutual Insurance Association v. Harris

• Decision Date: 31 October 1910
• Citation: 131 S.W. 949,96 Ark. 222
• Parties: PLANTERS' MUTUAL INSURANCE ASSOCIATION v. HARRIS
• Court: Arkansas Supreme Court

131 S.W. 949

96 Ark. 222

PLANTERS' MUTUAL INSURANCE ASSOCIATION v. HARRIS

Supreme Court of Arkansas

October 31, 1910

Appeal from Union Circuit Court; George W. Hays, Judge; reversed.

Judgment reversed and cause remanded for new trial.

R. L Floyd, for appellant.

If an administrator makes payment or distribution under an order which is void, or which orders distribution before the debts are paid, he is not protected. 18 Cyc. 632. If a sale is not made for the payment of debts, the proceeds, if needed therefor, must be applied to the debts. Id. 334.

The judgment against the administrator, on which the scire facias was sued out, is conclusive against the bondsmen. 18 Cyc 1190; Id. 1192; Id. 1272; Id 1274; 46 Ark. 265-6.

Patterson & Green and Mahoney & Mahoney, for appellees.

J. C. Wright was not a distributee, but a creditor of the estate. There can be but one construction of the order of April 15, 1901--that is, that the sale was made for the sole purpose of paying his debt and another. But one meaning can be given the order of April 14, 1902, that is, it was an order directing the pay of his claim with the land or proceeds. If this order was not specific, it must be construed with the order directing the sale and the report of sale. 23 Cyc. 1101, 1102, 1104.

The order directing the application of the proceeds was a final order, and appealable. 92 Ark. 616; 74 Ark. 81. Not having been set aside in term time, nor appealed from, all matters included therein became res judicatae, and the later order, that of July, 1906, was a nullity. 14 Ark. 244; 1 Ark. 497; 6 Ark. 282; 10 Ark. 241; 39 Ark. 482; 12 Ark. 95; 89 Ark. 163; 53 Ark. 316; 23 Ark. 444; 40 Ark. 393; 20 Ark. 526; 36 Ark. 401.

OPINION

FRAUENTHAL, J.

The appellant was a creditor of the estate of G. M. Wright, deceased, and its claim had been duly allowed by the probate court in the regular course of the administration of said estate. It obtained an order from said court adjudging that J. H. Walsh, the administrator of said estate, should pay to appellant a certain proportion of its probated claim, together with the same proportion of other claims of the same class. Having exhausted its remedy against the administrator without success of collection, it sued out of said probate court a scire facias against the sureties upon this bond as such administrator, under section 158 of Kirby's Digest, and thereby sought to obtain judgment against said sureties for the amount of its claim which had been ordered paid. The probate court refused to render judgment against said sureties, and the claimant appealed to the circuit court, and that court sustained the order of said probate court refusing to render said judgment against the sureties of said administrator. The claimant has appealed to this court.

In January, 1901, J. H. Walsh duly qualified as administrator of the estate of George M. Wright, deceased, with the will annexed, and thereafter filed a petition in the probate court asking for an order to sell the land belonging to said estate in order to pay the debts of certain named creditors of said estate in pursuance of the directions contained in the will of said testator. At its April term, 1901, the probate court made the following order of sale:

"Petition to Sell Lands Granted. On this day the court takes up the petition filed by J. H. Walsh, as administrator of the estate of George M. Wright, deceased, asking for an order to sell the northwest quarter, section 36, township 19, range 16 west, belonging to said estate under the terms of the last will of said deceased, to pay the debts provided for in said will of J. W. Anderson and J. C. Wright, and now the court, being fully advised in the premises, grants the same.

"It is therefore considered, ordered and adjudged by the court that J. H. Walsh, administrator, be authorized and directed to sell the northwest quarter of section 36, township 19 south, range 16 west, at public sale at the east door of the court house at El Dorado, Arkansas, after giving notice of the time, terms, and place of said sale. That said sale be made on a credit of three months, the purchaser giving note with approved security, and a lien to be retained on lands for the purchase money thereof. It is further ordered that the administrator make report of said sale when made."

In pursuance of said order the administrator sold said land, and thereafter made report of such sale to the probate court. Thereupon the probate court at its April term, 1902, made an order duly approving the sale of said land. The order confirming said sale is as follows:

"In matter of estate of G. M. Wright, deceased. J. H. Walsh, administrator.

"Report of sale of real estate approved. Ordered recorded. Deed approved.

"On this day the court takes up the report of the sale of the northwest quarter, section 36, township 19 south, range 16 west, made by the administrator on the 2d day of December, 1901, after being granted an order for that purpose by the court, and the court finds that said sale was made in accordance with the law, after legal appraisement, notice, etc., and, it further appearing to the court that deed has already been made to the said land to the purchaser thereof and has been duly acknowledged by said administrator by the clerk of this court, it is therefore considered, ordered and adjudged by the court that the sale made by the administrator in this matter be, and the same is, hereby approved and ordered recorded in volume A, sales bills, page . . . It is further ordered by the court that the deed made to J. C. Wright as purchaser of said lands be approved as made and acknowledged, and that same be turned over to him."

There was no order made by the probate court directing the administrator to pay the debts of J. W. Anderson and J. C. Wright referred to in the above order of sale, unless it be considered that the said order of sale contained such direction. The administrator made no report to said court that he had made such payment to such creditors, and no order was ever made by said court approving such payment. At a later year during the progress of said administration, the probate court ordered said administrator to file a settlement, which was done. The probate court passed upon this settlement at its July term, 1906, and restated the same. It charged the administrator with the proceeds of the sale of said land and with interest thereon, and this appears to have been all the assets of said estate which came to the hands of said administrator. It then provided for the payment of the cost of the administration, and directed that the remainder of the amount charged against the administrator be paid to all the creditors of the estate whose claims had been duly probated. This amount thus found due from the administrator was only sufficient to pay to each creditor a proportionate part of his claim, and the probate court found the specific sum that was thus payable to each creditor. It then ordered and adjudged that the administrator pay out of the funds of the estate thus charged to him to each of said named creditors the specified sum found due to each of them. The amount thus ordered to be paid to appellant was $ 147.38.

In the same order it appears that the bondsmen of said J. H. Walsh, administrator, excepted to the ruling and judgment of said probate court, and asked an appeal to the circuit court, which was granted. But said appeal to the circuit court was never actually taken or perfected. The administrator failed or refused to pay to appellant the sum thus ordered paid to it by said probate court; and, after exhausting the remedy against the administrator as provided for in section 157 of Kirby's Digest, the appellant sued out of said probate court a scire facias against the sureties of said administrator, and sought by this proceeding to obtain a judgment against said sureties for the amount of its claim ordered to be paid.

It is urged by counsel for appellees that the administrator had under the directions of the will of the decedent, applied to the probate court for an order to sell the land for the purpose of paying the debts of J. W. Anderson and J. C. Wright as provided for in the will, and that the probate court had made the above order of sale of said land in pursuance of said application. It is claimed that said above order of sale and the confirmation thereof was in effect a direction to the administrator to pay to the said creditors named in the will the amount of their debts, which he did, and that this exhausted the proceeds of the sale of said land, which was all the assets of the estate; and it is urged that the administrator was protected by said order from further liability to said estate or...