Stevenson v. Murray

• Decision Date: 06 June 1889
• Citation: 87 Ala. 442,6 So. 301
• Parties: STEVENSON v. MURRAY ET AL.
• Court: Alabama Supreme Court

6 So. 301

87 Ala. 442

STEVENSON v. MURRAY ET AL.

Supreme Court of Alabama

June 6, 1889

Appeal from probate court, Calhoun county; EMMET F. CROOK, Judge.

John M. Caldwell and Knox & Bowie, for appellant.

Brothers, Willett & Willett, for appellees.

MCCLELLAN J.

On the 8th day of April, 1887, Hugh Stevenson, as the administrator of the estate of Edward C. Murray, deceased, filed a petition in the probate court of Calhoun county, alleging that said estate owed debts to the amount of more than $5,000, and that the personal property belonging to the estate was insufficient to pay them, and praying for an order to sell certain real estate for that purpose. On May 19, 1887, and order of sale was made in response to this petition. The order recites, among other things, the application of said Hugh Stevenson administrator, etc., notice of the same, appointment, appearance, and denials of a guardian ad litem for the minor heirs of the decedent, and that, "it further appearing to the satisfaction of the court by the oaths of Hugh Stevenson and August Lorenzen, disinterested witnesses, whose testimony has been taken by depositions as in chancery proceedings," etc. On March 25, 1889, the minor heirs of said intestate filed by their next friend a petition in said probate court, praying that the order of sale be vacated on the ground that the necessity therefor had not been proved by two disinterested witnesses, and alleging that one of the two witnesses, whose deposition had been taken as recited in the order, was the administrator of the estate. The administrator demurred to the petition. The demurrer was overruled, and, no further defense being made, the prayer of the petition was granted, the order of sale vacated and annulled, and this appeal prosecuted from the decree of the court in that behalf.

It is admitted, and the record shows, that all the proceedings including and resulting in the decree of sale were regular unless the rendition of the decree on the evidence of Hugh Stevenson and another was an irregularity. There is, of course, no question made as to the requirement that the necessity for a sale of the decedent's lands must be shown by two disinterested witnesses. Code, §§ 2111, 2114. It is equally clear that an order of sale made in the absence of such proof, taken, as in chancery proceedings, where the land has descended to minors, is void. Id. § 2114; Robertson v. Bradford, 70 Ala. 386; Pettus v. McClannahan, 52 Ala. 58. The administrator is the movant-the party plaintiff-in proceedings for the sale of lands to pay the debts of the estate, and the heirs of the estate are the parties defendant thereto. The personal representative on the one hand and the heirs on the other are adversary parties, with all the incidents implied in that relation. Garrett v. Bruner, 59 Ala. 515; Davis v. Tarver, 65 Ala. 98; Curry v. Peebles, 83 Ala. 225, 3 South. Rep. 622. Nor is the administrator a mere nominal party to the record. He has a direct interest to subserve in the subjection of the lands of the estate to the payment of its debts. To do so, may, in certain contingencies, relieve him from personal accountability, and in any event would redound to his advantage to the extent of the commissions allowed him on assets which pass through his hands. We entertain no doubt, therefore, that he is not a disinterested witness within the meaning of sections 2111 and 2114 of the Code. It follows that, if it can be legally determined in this proceeding that one of the two witnesses upon whose testimony the order of sale was based was the administrator of the estate, the order was void, and the decree of the probate court so declaring must be affirmed. The application for the order of sale, as we have seen, stated all the facts necessary to give the court jurisdiction. By the unbroken current of our decisions a decree based on such a petition will be upheld against collateral attack, even though it should...