Alford v. Alford , 96 Ala. 385 ( 1892 )

WALKER, J.

In cases of intestacy, the written application of the administrator for the sale of lands for the payment of debts must contain: 1st, an accurate description of tbe lands; 2d, tbe names of tbe beirs, tbeir places of residence, and a statement wbetber any, and which of them are under tbe age of twenty-one years, or of unsound mind, or are married women; 3d, averments showing tbe insufficiency of tbe personal property to pay debts, and, 4th, that tbe estate of tlie deceased owes debts to a certain or an estimated amount. — Code, §§ 2104 and 2106; 3 Brick. Digest, p. 466, §§ 170 et seq. On tbe bearing, tbe applicant must show to tbe court that tbe personal property is insufficient for tbe payment of debts; and such proof must be made by tbe deposition of disinterested witnesses, and filed aud recorded. Code, § 2111. Tbe last mentioned section does not require that, in case of a contest of tbe application, all tbe controverted allegations of tbe petition for tbe sale of land must be proved by tbe deposition of disinterested witnesses. Tbe one fact required to be proved by such testimony is tbe insufficiency of tbe personal property of tbe estate for tbe payment of debts. In Garrett v. Bruner, 59 Ala. 513, it was held, that, on tbe bearing of such an application, a creditor was a competent witness to prove bis debt, as be was not a party to tbe proceeding, and was not, therefore, within tbe exception to the statute on tbe subject of tbe competency of witnesses as affected by interest. — Code, § 2765. (It may here be noted that this section of tbe Code has been amended since tbe trial of tbe case under consideration. — Acts of Ala. 1890 -91, p. 557.) It is asserted in Quarles v. Campbell, 72 Ala. 64, that tbe averment of tbe petition as to tbe existence of debts must be proved by tbe deposition of disinterested witnesses. This assertion was not necessary to tbe decision in that case, as tbe order of sale there in question was reversed and set aside on tbe ground that there was no evidence of any indebtedness of tbe decedent. ¥e do not think that tbe cliotum in tbat case as to tbe proof required of tbe existence of indebtedness is a correct statement of tbe law. We are satisfied tbat in such a proceeding tbe creditors themselves were, prior to tbe amendment of tbe statute above referred to, competent witnesses to prove their debts, as Avas decided in Garrett v. Bruner, supra. Tbe language of section 2111 does not refer to tbe manner of proving tbe existence of debts. Debts being proved by evidence not rendered incompetent by other provisions of laAv, tbe further fact tbat tbe personal property of tbe estate is insufficient for tbe payment of such debts must be proved by the depositions of disinterested witnesses. Tbe object of tbe statute is to require very satisfactory proof of tbe saleable value of tbe personal property, so as to sbow tbe necessity of resorting to tbe land of-tbe decedent for tbe payment of bis debts. When tbe value of tbe personal property is proved by tbe depositions of disinterested witnesses, and it appears that sucb value is less than tbe amount of tbe debts, wbicb may be otherwise proved, tbe necessity of' subjecting tbe lands of tbe estate to tbe payment of debts is shown in tbe mode contemplated by tbe statute.

In tbe present case, tbe existence of debts and tbe amount thereof were proved by witnesses who were interested as creditors. Tbe facts as to what personal property belonged to tbe estate and tbe value thereof were testified to by two witnesses, Slack and Hodges, who do not appear to have any interest in tbe proceeding. Tbe witness Hodges speaks of tbe decedent in bis life-time mentioning to him certain debts owing to other persons, and also a debt to tbe witness. It appears, however, that tbe debt to tbe witness bad been paid before bis testimony was taken, as be says explicitly that he has no personal knowledge of any debt existing against tbe estate of tbe decedent. It clearly appears from the testimony of these two witnesses that the personal property was insufficient for tbe payment of tbe debts wbicb were proved by tbe other witnesses. Tbe testimony on this subject remained uncontradicted. In this respect there was no deficiency in tbe evidence to support an order for tbe sale of land.

There was evidence to sbow that tbe decedent bad been in possession of tbe lands mentioned in tbe petition for many years before bis death, claiming them as bis own, and was at tbe time of bis death in tbe actual occupancy of said lands. Proof of possession by tbe decedent under claim of right is sufficient, when unrebutted, to sbow that be bad an interest in tbe land wbicb may be subjected to tbe payment of bis debts. Proof that another person, not shown to have any title or interest in tbe land, lias undertaken to convey a part of it, is insufficient to rebut tbe presumption of title in tbe decedent based upon bis actual possession and claim of right. Tbe evidence offered by. tbe defendant “William AU ford going no further than this, was properly excluded as immaterial.

Tbe question as to tbe due execution of tbe deed of revocation is immaterial. In tbe deed of trust sought to be revoked tbe grantor reserved to himself, for bis own benefit, an absolute power of revocation. In sucb case, so far as tbe rights of tbe grantor’s creditors are concerned, be must be taken as tbe absolute owner of tbe estate conveyed. — Code, § 1947. Tlie laud described in tlie deed of tbe decedent and bis wife to Ecbols, as trustee, because of tbe reservation to tbe decedent of an absolute riglit of revocation, remained subject to bis debts, and could be sold for tbe payment thereof in tbe administration of bis estate. ' So far as tbe right to sell it for tbe payment of debts was concerned, it made no difference whether tbe power of revocation was executed or not.

No error of injury to tbe appellants is discovered in tbe record.

Affirmed.