Garner v. Toney , 107 Ala. 352 ( 1894 )

HARALSON, J.

Section 2104 of the Code makes the provision, that “in cases of intestacy, lands may be sold by the administrator for the payment of debts, when the personal estate is insufficient therefor.” The jurisdictional facts, in a proceeding of the kind, are that the administrator, in his application to the probate court to sell the lands for such purpose, shall show, that there are debts of the intestate to be paid, and that the personal estate which he left is insufficient to pay them.— Kent v. Mansell, 101 Ala. 334; Smith v. Brannon, 99 Ala. 445; Cotton v. Holloway, 96 Ala. 544; Goodwin v. Sims, 86 Ala. 102 ; Pettus v. McClannahan, 52 Ala. 55.

Section 2106 provides for the making of the application, by whom and to whom to be made, and its contents ; and a day must be fixed for the hearing of the application, after notice to the interested parties. — § 2107.

Section 2111 then provides, that on the day appointed for the hearing, ‘‘the applicant must show to the court, that the personal property of the estate is insufficient for the -payment of the debts ; and such proof must be made by the deposition of disinterested witnesses, and filed and recorded.” We have held, that while this proof, on the part of the personal representative, must be taken by deposition, the contestants may, by oral evidence, controvert the facts stated in the application. — Garrett v. Bruner, 59 Ala. 513 ; Davis v. Tarver, 65 Ala. 98 ; Gayle v. Johnson, 72 Ala. 256.

In this case, there is no complaint against the sufficiency of the application, under the statute, nor of the fullness and correctness of the decree of sale which was rendered thereon by the probate court. The appeal is taken from that decree, on the transcript of the record, without any bill of exceptions. No errors are insisted on, which are not alleged to be apparent on the record.

The assignments of error question the sufficiency of the evidence of the witnesses examined by the administrator, and which are found in the transcript, to warrant the decree of sale of the lands rendered by the probate court. The appellee contends, that these depositions are not a part of the record, and the decree being full, correct and unassailable for what appears on its face, and no exception having been taken on the trial; as to the admissibilily or sufficiency of the evidence introduced, the appellants are without ground of complaint against said decree. But waiving that question, and treating the evidence taken as properly before us, there does not appear to be any error in the record.

The testimony of the witness, Shook, of itself, is not sufficiexit to show an indebtedness oxi the part of petitioner’s intestate, Celia Berry. He stated he did not know of his own personal knowledge of g,ny debts against her estate. Although he was acquainted with her, he knew of no personal property she owned at the time of her death. The witness, Cobb, however, in answer to the question as to what personal property she had at the time of her death, what it was worth and what became of it, stated, that she owned a cow and a yearling, and they both died after said Celia died ; and he further testified, that said Celia was indebted to M. A. Clay for a note for $300, given for the purchase money of land, and that the same is unpaid.

The note evidencing the debt for which the sale of land was sought to pay, is payable to M. A. Clay on the 25th of December, 1887, is for the sum of $300, as purchase money for land, and imports on its face to be under seal, —its language being, in conclusion, “as witness our hands and seals, this the 7th September, 1882.

The evidence of the .witness, Cobb, seems to establish with reasonable certainty, the existence of the indebtedness alleged in the petition, and that there were no personal assets of the intestate sufficient to pay it. The evidence of one witness was sufficient. — Thompson v. Boswell, 97 Ala. 570.

The error assigned as to the statute of limitations barring the debt described in the application, — if the question is properly presented, — has no foundation, in fact. The note described as owing, purports, as we have seen, to be under seal and was due, by its terms, on the 25th of December, 1887. The petition in this case was filed, 17th November, 1893, and, continued until the 15th of January, 1894, was tried, and the decree rendered on that date.

Affirmed.