Mays v. Rogers

Harrison, J. The Statute of non-claim was suspended ■during the war. Williamson et al v. McCrary, ad., 33 Ark., 470. The claim of Joues was, therefore, presented in due time; yet if it had not been, the allowance of it could not be called in question in a collateral proceeding. Carter, ad., v. Engles, 35 Ark., 205; Montgomery and wife v. Johnson, 31 Ark., 74, and cases there cited. Under our system of administration there can be no necessity or occasion for the revival of allowances. Gantt’s Dig., secs. 142-147; Rose v. Thompson, 36 Ark., 254. And as payment of claims can be enforced only as ■directed by the Statute, and after the court has found, upon •■a settlement of the administrator, that there is money in his hands for the payment of them, and has ordered their payment in full, or pro rata, as it shall suffice, the allowances cannot be barred by the Statute of Limitations. Gantt’s Dig., secs. 142-147. The lands and tenements of which an intestate has died, siezed, are, by the Statutes, made assets in the hands of his administrator for the payment of his debts, and in case of a deficiency of the personal estate, may, under an order of the court, be sold for that purpose. But this charge upon the real estate is not a perpetual one, which may be enforced by the administrator after any lapse of time. The heirs should not be forever deterred from making improvements on the property, or prevented from selling it, by the possibility that it may be sold for the debts of tV estate. The power of the administrator must be exercised in a reasonable time, and will be lost by gross laches, or unreasonable delay. Rorer on Jud. Sales, secs, 254-257; Vansyckle v. Richardson, 13 Ill., 171; McCoy v. Morrow, 18 Ill., 519; Heirs of Langworthy v. Baker, 23 Ill., 484; Smith v. Dalton, 16 Maine, 308 ; Mooers v. White, 6 John. Ch., 360; Ricarcl v. Williams, 7 Wheat., 59; Ex parte Allen, 15; Mass., 58; Wellman v. Lawrence, Ib., 326. What is such reasonable time must be determined by the court, in its sound discretion, under the circumstances of the case. Mooers v. White, supra. This proceeding, to subject the lots to the payment of the debts of the estate, was not begun until eighteen years after the first grant of administration, and twelve after the appointment of the petitioner as administrator, de bonis non, and no attempt had been made by him for ten years to enforce the lien against airy part of the real estate. It does not appear that any cause existed for this failure sooner to proceed against the real estate, and we are of the opinion that a delay for such a length of time as ten years, when there was no hinderance or proper cause therefor, was unreasonable, and that the lien on the real estate was thereby lost. Another objection to the order is apparent upon its face. It included the tracts of land as well as the town lots, when the petition only prayed for the sale of the latter. The judgment of the court below is reversed, and the cause remanded to it, with • instructions to allow the petitioner to amend his petition, if so advised, and for further proceedings.