Flowers v. Reece , 92 Ark. 611 ( 1909 )

Hart, J.,

(after stating the facts.) This case is ruled by the case of Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81. In that case it was held (quoting syllabus) :

1. “Under Kithy’s Digest, § 186, providing that 'lands and tenements shall be assets, in the hands of every executor or administrator for the payment of debts of the testator or intestate,’ if there are no debts due by the decedent, there can be no sale of his real estate to pay expenses of administration thereon, unless it appears that the expenses were incurred in the course of administering the estate to pay debts due personally by the decedent.

' 2. “While the probate court is a superior court, its judgments are void if they show on their face that the court was acting beyond its jurisdictional limits.

3. “An order of the probate court for the sale of lands of an estate which shows on its face that it was made to pay expenses of administration, and not debts of the decedent, without showing that the expenses of administration were incurred in the course of administering the estate to pay debts due personally by the decedent, is void, and no rights' were acquired under it, although the sale was afterwards confirmed.”

In the present case the assignee of the widow of decedent was allotted dower in the proceeds arising from a sale under a foreclosure of a mortgage made by King B. Flowers in his lifetime, which were in the hands of his administrator. Certain costs were also allowed the assignee of the widow in the suit for the allotment of dower. The order of sale affirmatively shows that it was made for the purpose of paying these amounts. It was not a sale to pay debts or to pay expenses of administration incurred in the course of administering the estate to pay debts due personally by the decedent. Hence it was void, and the purchasers at the sale acquired no rights under it. It follows that there was no 'consideration for the .bonds, and that the court erred in sustaining the demurrer to the answer and cross-complaint.

Opinion delivered December 6, 1909.

For this error the decree is reversed, and the cause is remanded with directions to overrule the demurrer, and for such other proceedings not inconsistent with this opinion as the parties in equity are entitled to.