Ford v. Ford's Adm'r , 68 Ala. 141 ( 1880 )

BRICKELL, C. J.

When an application to the Court of Probate, by a personal representative, for an order to sell lands for the payment of debts, is contested, it assumes the form, and has the characteristics and properties, of a suit inter partes. The judgment or decree rendered by the court is conclusive between tbe parties, in reference to the subject-matter of the suit, and the matters which were in issue and determined. If .the judgment or decree is that the order of sale be granted, it is conclusive that, at the time of its rendition, the personal property of the estate is insufficient for the payment of debts. Or, if the judgment or decree is that the application be not granted, it is conclusive that the personal assets are then sufficient for the payment of debts. The-judgment or decree has relation solely to the status of the estate in this respect, at the time of its rendition, and not to its status at some subsequent time, when new facts may have occurred -changing, it. Debts may come to the knowledge of the personal representative, and may be presented and preferred, of which he was uninformed, and the payment of which may render a sale of the lands necessary. Or, without fault on his part, the personal assets may be lost or diminished in value, rendering a sale of the lands necessary, which was unnecessary while the personal assets were available. The decree of the Court of Probate, refusing an order for the sale of the lands, and dismissing the application of the personal representative, as between him and the heirs who were parties, is conclusive, that the personal property of the intestate was, at the time of its rendition, sufficient for the payment of debts. The sale of the lands for the payment of debts was the subject-matter of the controversy; and the issue was, the necessity for the sale because of the insufficiency of personal asset's.

# While a judgment or decree is conclusive between parties and privies, of the matters in issue and determined, it is not conclusive of matters drawn in controversy collaterally — merely given in evidence to support or controvert the matter directly in issue. — Freeman on Judgments, sections 257-8. The liability of the personal representative for the rents of the lands of the intestate, either during her life, or after her death, may have been matter of controversy on the trial of the application for the sale. The existence of the liability, if shown, was mere evidence of personal assets primarily chargeable with the payment of debts. Of such evidential facts, a judgment or decree is not conclusive. It is too well settled to require the citation of authority, that the conclusiveness of a judgment extends only to the question directly in issue, and not to any incidental or collateral matter, though it may have arisen and been passed upon. The doctrine was clearly stated in the Duchess of Kingston’s case, 2 Smith’s Lead. Cases, 609, that “neither the judgment of a court of concurrent or exclusive jurisdiction is evidence of any matter which came collaterally in question, though within their jurisdiction, nor of any matter, incidentally cognizable, nor of any matter to be inferred by argument from the judgment.”

The Court of Probate erred in overruling the demurrer to the replication, as it is termed, by the administrator.

Reversed and remanded.