Townsend v. Steel , 85 Ala. 580 ( 1888 )

SOMEBVILLE, 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.

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 from others on inquiry. If the names of the heirs had been stated without more, it would have been implied that the statement was made only to the best of the petitioner’s knowledge and information. To verify it by the additional confirmation of his “belief” that the fact stated was true, could in no manner detract from the force of the allegation. It rather strengthens it.

The judgment will be reversed, on the authority of Lyons v. Hamner, 84 Ala. 197, and the cases cited and reviewed at length in the opinion of the court in that case. There is nothing in the case of Bingham v. Jones, 84 Ala. 202, cited by appellee’s counsel, which countenances a different view of the case.

The record shows that the appellee appeared in the court below, claiming to be the sole heir at law of the decedent; and on her motion the petition of the administrator was dismissed. The bill of exceptions, however, which purports to set out all the evidence, fails to show that she was an heir at all, or had any interest in the estate of Dorse. If she had appeared, and satisfied the court prima facie that she was an heir, the proper practice would be to permit her to be made a party defendant, with permission to controvert the application, including the statement as to who were the real heirs of the decedent. We have often held, in such cases, that an heir, whose name is omitted from the application, may appear, even after judgment, and be made a party to the record, on petition and proof of interest, in order to sue out an appeal to this court, this being the only-mode in which the interest of such heir can be properly protected, after the order of sale is made. — Lyons v. Hamner, 84 Ala. 201, supra, and cases cited on page 202. It follows, necessarily, that they may become parties during the pendency of the proceeding in the court below, on like application and proof. Otherwise, the right of reversal would be futile, and without any benefit to the successful appellant. Where such proof is made to the satisfaction of the court, it defeats the application, by disproving an essential averment as to who the heirs are, unless the petition be amended to correspond with such proof. The allegata and probata must correspond, as to all matters material, as well in the Probate as in the Chancery Court.

The court erred in dismissing the application, in view of the fact that there was no evidence showing that the appellee, or any other person than the two named, was the lawful heir of the decedent.

Beversed and remanded.