State v. Williams

• Decision Date: 13 November 1901
• Parties: STATE EX REL. CRAFT v. WILLIAMS, PROBATE JUDGE.
• Court: Alabama Supreme Court

30 So. 782

131 Ala. 56

STATE EX REL. CRAFT v. WILLIAMS, PROBATE JUDGE.

Supreme Court of Alabama

November 13, 1901

Appeal from circuit court, Mobile county; Wm. S. Anderson, Judge.

Application by the state, on the relation of John Craft, for writ of mandamus to Price Williams, Jr., probate judge. Application denied, and petitioner appeals. Affirmed.

The state of Alabama, on the relation of John Craft, filed his petition asking for the issuance of a writ of mandamus. In this petition the following facts were disclosed: B. H Stoutz died on November 11, 1888. On December 3, 1888 Gaylord B. Clarke was appointed administrator of the estate of said B. H. Stoutz, deceased. On December 21, 1891, Gaylord B. Clarke, as administrator of the estate of B. H. Stoutz deceased, filed in the probate court of Mobile county an application for the sale of certain real estate belonging to the estate of B. H. Stoutz, deceased, for the payment of a number of debts alleged to be due by said estate, the claims for which debts had been presented to the administrator or filed in the court. As the result of the application for the sale of said real estate, the probate court of Mobile county rendered a decree on February 15, 1892, authorizing the said Clarke to sell said real estate for the payment of the debts of said B. H. Stoutz, deceased. In June, 1893, Clarke died without having sold said real estate or having made any report to the probate court. He had, however, in the meantime, compromised and settled a large number of debts the existence of which had been shown in the probate court. Among the debts which had not been paid was a debt to Craft &amp Co., amounting to $232.08, and another debt to A. Pinkus, amounting to $20.25. Craft & Co.'s claim was filed in the probate court on December 10, 1888, and consisted of an account rendered and six promissory notes, for $25 each, maturing, respectively, on October 30, November 30, and December 30, 1888, and January 30, February 28, and March 30, 1889. The Pinkus claim was upon an open account, and was filed in the probate court on December 10, 1888. After the death of said Clarke the present petitioner, John Craft, was appointed administrator de bonis non of the estate of B. H. Stoutz, deceased. No further proceedings were had in regard to the matter of the sale of the real estate belonging to the estate of B. H. Stoutz, deceased, for the payment of said debts, until February 27, 1899, when the present petitioner, John Craft, as administrator de bonis non of the estate of said Stoutz, filed in the probate court of Mobile county a motion which was, in effect, for the revivor of said order of sale in his name as administrator de bonis non. Prior to the filing of this motion for the revivor of said order, the heirs of said B. H. Stoutz filed in the probate court of Mobile county a petition asking for the sale of the same real estate for division among the heirs. The proceedings had upon this petition were regularly conducted, and resulted in a decree of sale for the purposes set forth in the petition. At this sale one C. L. Cowart became the purchaser. After having so purchased the lands sold for division, said C. L. Cowart died, and his widow and heirs, together with the administrator of his estate, filed an application in the probate court praying to be let in as parties defendant and defend against the motion of the petitioner, John Craft, for the revivor of the order of sale which had been granted in favor of Gaylord B. Clarke, as administrator in chief. The grounds of this motion were-First, that the debts of said estate which remained unpaid had been barred by the statute of limitations; and, second, because, whatever may have been the necessity for the sale of the real estate at the time the order was granted, the necessity no longer existed, since nearly all of the debts had been compromised and settled, so that the balance remaining due and unpaid could be paid off with the personal estate on hand. The court granted an order allowing the application of the heirs and administrator of C. L. Cowart to appear and defend. Thereupon John Craft, as administrator de bonis non, moved the court to set aside said order allowing the said interveners to defend, upon the ground that it had been...