Poole v. Daughdrill

SHARPE, J. To conform to the statute authorizing sales of a decedent’s lands by order of the probate court the application therefor must give inter alia “the-names of the heirs or devisees and their places of residence, and must also state whether -any, and which of such heirs or devisees are under the age of twenty-one years, or of unsound mind, or are married women.” Code, § 158. The application for -sale in the pending case is defective in several particulars. It fails to state whether any or which of the heirs are married women. It is wholly uncertain as to the heirship of Jessie L. Poole, whose name appears in the list of heirs as “Jessie L. Poole, who resides in Marion, Perry County, in the State of Alabama, who died in Marion, Perry County, Alabama, on the 13th day of '-April,. 3899.” It mentions Mollie Poole as a deceased heir without stating who succeeded as heirs to her title. While these defects do not render the judgment subject to collateral attack, they make such irregularity as is cause for reversing the judgment.—Bozeman v. Bozeman, 82 Ala. 389; Neville v. Kenney, 125 Ala. 149; Bingham v. Jones, 84 Ala. 202; Lyons v. Hamner, 84 Ala. 197. In the application an administrator ad litem is prayed for to represent the estate of Mollie Poole, and one was appointed for that purpose. This also was irregular. The lands of an intestate pass not to his personal representatives but to his heirs. His heirs are those upon whom the law casts the estate whether by descent, ascent, or collateral line. When after inheriting, one of such heirs dies, there is no abeyance, but title to his interest though undivided, is immediately transmitted to his heirs. The statutory requirement relative to stating the names, etc., of heirs intends to include'all those holding the title to be divested by the proceeding whether taking immediately or by removed succession from the intestate whose estate is being administered. Ruc-h successors in title are the proper representatives of the interest which resided in their predecessor. It [213] may be that an executor or regular administrator of the original heir needing the realty for the payment of debts would come within the statute which entitles any •“person interested in the estate” to contest the application for sale, but there can never be use for an administrator ad litem in such cases. Treating the annexed schedule of debts as part of the averments, the petition sufficiently avers the existence of debts.—Neville v. Kenney, supra. To sustain an application of this character the statute requires “the applicant must show to the court that the personal property of the estate is insufficient for the payment of debts;, and such proof must be made by the deposition of ..disinterested witnesses, and filed and recorded.” — Code, § 164. In Quarles v. Campbell, 72 Ala. 64, it was held that in order to show a necessity for selling land to pay debts, proof is needed to show the existence of debts as well as to show the value of personalty and that, therefore, evidence on both these matters must be had by depositions. Justice Tyson and the writer are unable to find fault with that view; but the majority of the court hold the statute does not Intend that depositions must necessarily be used to prove debts, but that they may be proved by evidence adduced in the ordinary mode. This is apparently in consonance with what is said in Mayor v. Miller, 124 Ala. 434, and also in Alford v. Alford, 96 Ala. 385, wherein the opinion in Quarles’ case was criticised as •unsound. Accordingly the prevailing opinion is that where as here it is shown by depositions that the estate owns no personalty it will in'the absence of a bill of exceptions or other thing in the record to the contrary he presumed that debts were proved on the trial by evidence outside the depositions. Reversed and remanded.