Townsend v. Steel

• Decision Date: 05 February 1889
• Citation: 85 Ala. 580,5 So. 351
• Parties: TOWNSEND v. STEEL.
• Court: Alabama Supreme Court

5 So. 351

85 Ala. 580

TOWNSEND v. STEEL.

Supreme Court of Alabama

February 5, 1889

Appeal from probate court, Madison county; THOMAS J. TAYLOR, Judge.

Thomas W. Townsend, as administrator of the estate of Thomas Dorse deceased, filed his petition in probate court for an order to sell lands for distribution or equitable division. The original petition alleged " that the heirs of said decedent are not fully known to the administrator. Lewis Novell and Nancy Novell claim to be the lawful heirs and distributees of said Thomas Dorse, who are over twenty-one years, of sound mind, and reside in Madison county. The administrator is not able to give a full and satisfactory list of the heirs of said decedent; and that said lands cannot be fairly and equitably divided among said alleged heirs without a sale of the same." On the day appointed for the hearing, as the judgment entry recites, Mary Steel appeared by attorney, "who avers herself to be the only heir at law of the said decedent, and moved the court to strike the administrator's said petition and application from the files, because it shows that said court is without jurisdiction in the premises." Thereupon the administrator amended the petition, striking out the words above italicized, and inserting these words: "He states to the best of his knowledge, information, and belief, and after diligent search, that the said Lewis Novell and Nancy Novell are the only heirs at law and distributees of the said Thomas Dorse." The bill of exceptions adds: "There being no other evidence submitted, the petition as amended and the motion to dismiss it, were submitted to the court for decision;" and the court thereupon dismissed the petition. The administrator excepted to this ruling and judgment, and he here assigns the same as error.

William Richardson, for appellant.

Lawrence Cooper, for appellee.

SOMERVILLE J.

The only error assigned is based on the action of the probate court in dismissing the application of the administrator to sell the lands for distribution among the heirs of the decedent. The whole inquiry is whether the statement of facts in the application conferred jurisdiction on the court to make the order of sale authorized by the statute.

The only objection urged to the sufficiency of the amended petition is that it fails to state the names of the heirs with reasonable certainty. The averment made by the administrator on this point is that "Lewis Novell and Nancy Novell claim to be the lawful heirs and distributees of the said Thomas Dorse," the decedent, and he further states that "to the best of his [the administrator's] knowledge, information, and belief, and after diligent search, the said Lewis Novell and Nancy Novell are the only heirs at law and distributees of the said Thomas Dorse." This averment, in connection with other requisite allegations, as to the sufficiency of which no objection is taken, was in full compliance with the statute providing that the names of the heirs must be stated, and was prima facie sufficient to confer jurisdiction on the probate court to hear and determine the matters alleged in the petition. Code 1886, § 2106. ^[1] The only basis of knowledge in such cases must be either what is personally known to the petitioner, or such information as he may derive...