Tharp v. Johnson

• Decision Date: 25 April 1929
• Docket Number: 6 Div. 224.
• Citation: 122 So. 668,219 Ala. 537
• Parties: THARP ET AL. v. JOHNSON ET AL.
• Court: Alabama Supreme Court

122 So. 668

219 Ala. 537

THARP ET AL. v. JOHNSON ET AL.

6 Div. 224.

Supreme Court of Alabama

April 25, 1929

Rehearing Denied June 13, 1929.

Appeal from Circuit Court, Marion County; R. L. Blanton, Judge.

Bill to sell lands for division by Mary Tharp and others against W J. Johnson and others. Decree for respondents, and complainants appeal. Affirmed.

Mitchell & Ford, of Hamilton, and J. C. Milner, of Vernon, for appellants.

Ernest Fite and Kelly Fite, both of Hamilton, and Arthur Fite, of Jasper, for appellees.

THOMAS J.

The bill in equity, by appellants, sought sale of lands for division among joint owners.

The answer of respondents denied that complainants had any interest in the lands; that the same were duly claimed and set apart to them as exempt property from the insolvent estate of Allen Thompson, who died November 10, 1887, and that the title vested absolutely in the widow and minor children. And other matters of equitable cognosce are set up by the answer. Evans v. Evans, 213 Ala. 265, 104 So 515; First National Bank of Tuscaloosa v. Kennedy, 113 Ala. 279, 21 So. 387, 36 L. R. A. 308; Kilgore v Kilgore, 103 Ala. 614, 15 So. 897; Miles v Lee, 180 Ala. 439, 61 So. 915.

The right to homestead and exemptions of the widow and minor children was governed by the statutes in force at the date of Mr. Thompson's death (Bodeker v. Tutwiler, 211 Ala. 537, 100 So. 776; McDonald v. Berry, 90 Ala. 464, 7 So. 838; Snell v. Roach, 150 Ala. 469, 43 So. 189; O'Rear v. Jackson, 124 Ala. 298, 26 So. 944; Waters v. Gadsden-Alabama City Land Co., 182 Ala. 284, 62 So. 75) and was to be ascertained under the provisions of the Code of 1876; the Code of 1887 being of force 30 days from the date of the Governor's proclamation on November 25, 1887. The lands exceeding in area the exemptions allowed by law, provisions of General Acts of 1884-85, p. 114, amendment 1887 (Laws 1886-87) p. 112, or section 2821 of Code of 1876, have no application. Bodeker v. Tutwiler, supra.

The respective claims of complainants and respondents are thus stated by the trial Court:

"The Complinants claim an interest in the lands involved as heirs or assigns of heirs, of Allen Thompson, who died about Nov. 10, 1887, owning these and other lands. His estate was administered in the Probate Court of Marion County, letters of administration first issuing on March 4, 1889, and on April 4, 1889, these lands were set aside to the widow and minor children, under whom the Defendants claim title by mesne conveyances. It is the contention of the complainants that the title reverted to the heirs of Allen Thompson on the death of the widow in 1926 (all the minors then being of age), and that the lands are now subject to partition. On the other hand, the Defendants contend that, following the allotment and setting aside of the lands to the widow and minors, the title became vested in them absolutely because of the insolvency of the estate, and that the absolute title is now in Defendants. The contention in this respect is, either, that the estate was declared insolvent by the Probate Court, or, that the failure to have it declared insolvent was a fraud upon the surviving widow and minor children of Allen Thompson.

"Clearly, the estate of Allen Thompson was, as a matter of fact, insolvent, and before the administration was closed this fact was brought to the knowledge of the administrator and the Probate Judge. Some of the evidence tends to show that a petition was filed by or on behalf of the administrator to have the estate declared insolvent. No such petition appears in the record of the administration; nor is there anything in that record to show that the estate was ever declared insolvent, although the petition to sell certain other lands of the estate to pay debts does contain an averment that the estate was then insolvent. The fact of the insolvency being known to the administrator and the Court, the duty was mandatory on the administrator to report it and on the Court to declare it. If this was not done, why was it not done? Was it a mere oversight? The circumstances, as shown by the evidence, refute such a presumption. ***

"Allen Thompson had a former wife, by whom he had children and from whom he was divorced before he married the wife who survived him and by whom he also had children, including these minors. Children of this former marriage were, during and as shown by the record of the administration, even as now as shown by this suit, antagonistic to the claims and rights of the stepmother, the widow, and her minor children. They employed counsel to resist the proceeding to set aside the homestead to the widow and minors, on the ground that this widow was not the lawful wife of their father. It may not be significant, but it is worthy of note as showing, to say the least, the careless manner in which the files of the case in the Probate Court were kept, that it became necessary during this litigation to substitute the appraisement bill, order to appoint appraisers to allot homestead, and the report of commissioners allotting homestead, which were missing from the files. From a ruling of the probate Court in favor of the widow and minors the case was appealed to the Supreme Court. Thompson et al. v. Thompson et al., 91 Ala. 591, 8 So. 419, 11 L. R. A. 443. Just before or about the time these older children by the former wife instituted their contest the Probate Judge wrote, apparently voluntarily, to the widow, conveying to her a proposition from the older children to settle their differences, by the terms of which it was proposed that she might live on the place (these lands) during her life. Why this proposition, if the estate was not insolvent and a formal declaration of insolvency was not in prospect? Manifestly, it was not the life estate that was being resisted, but the absolute title that would inevitably follow from a declaration of insolvency. The estate did prove to be insolvent. Why was it not so declared? Another circumstance: The widow paid to the attorney for the administrator a fee of $50.00 to conduct the proceedings to have the estate declared insolvent. In acknowledging receipt of this money he wrote her as follows:

"'Please accept thanks for the receipt of $50.00. I have filed application in the Probate Court of Marion County to have the estate of Allen Thompson declared insolvent and to decree the sale of the rest of the land for the payment of debts. This will vest in you and the minor children an absolute estate in the exemption set off to you.'

"Evidently, the widow and minors thought and always assumed this had been done, and held and treated the lands as their absolute property. Was it not done? The records are silent. But equity must speak and say that it was, or if not, that the failure to have it done, under all the circumstances, was a fraud upon the widow and minor children."

The lands in question belonged to Allen Thompson at the time of his death and were 300 acres in area. He had two sets of children; the first were all of age; the second were minors who lived on the land with their mother. The estate was administered, at the instance of Mrs. Thompson, by one Bishop who died, and Davis was appointed administrator de bonis non, and, having completed the administration as to assets coming into his hands, was discharged. The record of this administration is in evidence.

The intestate lands consisted of 300 acres; 120 acres thereof were sold by the administrator for payment of debts, and 160 acres set apart as a homestead on due application to his widow and minor children. The petition to sell the lands to pay debts, by Bishop as administrator, made known to the court the insolvency of said estate, saying: "W. T. Bishop, Administrator of the Estate of Allen Thompson, deceased, respectfully represents unto your Honor that the estate of said decedent is insolvent; that there is no personal property of said estate to satisfy the debts of said estate and that it is necessary to sell the land of said estate to pay the debts of said estate." All the heirs of said estate are averred to be of age, except "Henry W. & Alonzo W. Thompson who are minors under twenty-one years of age, of sound mind and resides in Marion County, Ala. Wherefore, your petitioner avers that it is necessary for your Honor to grant an order in the premises, and prays that for the purpose of paying the debts of said estate your Honor will grant an order of sale."

A guardian represented the minors. The interrogatories in support of the petition showed the fact of debts after allowing exemptions to the widow and minor children; that there was not sufficient personal property to pay the debts, and there was a necessity to resort to the sale of the real property for such purpose. It was so ordered. The lands were sold for $100, and that sum was applied to and fully expended in the payment of court costs. "The amount of claims against the estate still unpaid (were) about $000.00;" and these facts were specifically indicated in the report and accounts of the administrator. The receipts of Seay and Cantrell were for their pro rata of the amount due them for acting as appraisers in said estate. The final decree makes no reference to the insolvency of said estate and recites that "the assets of said estate the sum of One Hundred Dollars in money and that he has justly expended in and about the costs and charges necessary and incident to the said administration the sum of one hundred dollars, leaving no balance for distribution among the heirs. *** the amount so collected by above administrator being paid out on the costs and charges necessary and incident to said administration as per vouchers. It is ordered by the Court that said...