Massey v. Doke

' .Wood, J., (after stating the facts). First. The principal ground of appellants’ contention is, that the circuit court erred in affirming the judgment of the probate court, approving the first and second annual settlements- of W. J. Doke, the administrator of the estate of R. D. Massey, in which he took credit for amounts paid by him for labor done and materials furnished and used in the construction of the hotel building after Massey’s death. Counsel for appellants urge that these credits can not be allowed the administrator under the decision of this court in Doke v. Benton County Lumber Co. et al., 169 S. W. 327, 114 Ark. 1. In that case certain, parties brought a suit in equity against Doke, to which the heirs of Massey were afterwards made parties, in which the complainants sought to have liens declared on the hotel building, for materials they had furnished which went into the construction of the building. The claim for liens filed showed that the materials were furnished to the administrator upon contracts made with him after the intestate’s'death, on an order of the probate court, authorizing and, directing him to complete the hotel building which R. D. Massey had begun in his lifetime and which had not been completed at the time of his death. In holding that that the complainants were not entitled to liens, we said: “The administrator was without authority to contract and the probate court had no such power to authorize him to complete the building or improvement, and purchase materials therefor, for which the furnishers could claim liens upon the improvements; ” and further, “the heirs have the right to the real property of an estate unless, and until it is necessary to apply it to the payment of the debts of the intestate; and it is not within the province of the administrator to construct or complete buildings at the expense of the real estate, for which mechanics liens can be fixed and enforced against it.” (1) The real controversy in the above suit was between the heirs of R. D.’ Massey and certain lien claimants. The administrator, Doke, was not a necessary party to that suit. His rights were not involved and under the issues there framed could not be determined, and hence the language above used must be considered in connection with the real parties in interest and the issues that were to be determined between them. While the witnesses in that case and much of the testimony was substantially the same, yet, what was said by us in that case has no ■ application to the issues raised in the present suit, for the issues here are entirely different and different principles must control in the decision of the case. 'This disposes of the contention of counsel for appellants that the decision of the court in Doke v. Benton County Lumber Co., supra, “is the law of this case,” and that it is res adjudicata. ■Second. The claims for labor done and for materials furnished in the hotel building accrued under the final order and judgment of the profbate court directing the administrator of the estate of Massey to complete the construction of the hotel building which E. D. Massey had begun in his lifetime. The exceptions to those items in the accounts of the administrator in which he claimed credit for the sums paid out for labor and materials necessary for the completion of the building under the order and judgment of the probate court are but a collateral attack upon the order and judgment of the court directing these expenditures. There was no appeal from this order and judgment of the probate court directing the completion of the hotel building and no direct attack upon it in any manner, and at the end of the term at which it was rendered such judgment became final. The question therefore here is, does this record show that the probate court had no jurisdiction to render such judgment? (2) Lands are assets in the hands of an administrator and are deemed in his possession and subject to his control for the payment of the debts of his intestate. Kirby’s Digest, section 79. The probate court has exclusive jurisdiction over the estates of deceased persons and their administrators. 'Constitution of Arkansas, art. 7, section 34. (3) If the hotel property belonging to the estate of Massey was in the possession and under the control of the administrator, Doke, for the payment of debts against the estate, he was acting within his power and within the scope of his duty as such in applying to the probate court for an order to complete the building, if this was necessary to prevent a loss of the property and to preserve it to the estate for the payment of the debts thereof. And the probate court was acting within the limits' of its constitutional jurisdiction in rendering a judgment granting the prayer of the administrator and directing him to complete the building in order to preserve the same, and to prevent its loss to the estate. The judgment of the probate court directing the administrator to complete the building, it will be observed, among other things, recites, “that the greater portion of the work and construction of said building was completed before the death of said Massey; that the building in the condition it was at ¡the time of the death of the intestate, was incomplete, and could not have been sold in that condition without great loss, and that it is necessary and to the best interests of said estate to carry out and perform the contracts for work and materials entered into by intestate in his lifetime and complete the construction of said building, and, further, if the work on said building is suspended until said notes mature, said building is likely to depreciate greatly in value,” etc. The recital that the building, “at the time of the death of the intestate was incomplete and could not have been sold in that condition without gre.at loss,” indicates that the hotel building was to have been sold, and in order to put it in a condition where it could be sold “without great loss,” it was necessary to complete it. (4-5) This order and judgment of the probate court, as we construe it, was nothing more nor less than one to prevent waste of the hotel property and to preserve it to the estate for the payment of the debts of the intestate. This is the only fair and reasonable inference to be indulged from the language in which the judgment is couched. In rendering such judgment, the court, was but pursuing, as above observed, its constitutional authority. It certainly can not be said that the judgment on its face shows that the court was acting beyond its constitutional jurisdiction. “The probate court is a court of superior jurisdiction, and, within its jurisdictional limits, its judgments import absolute verity, the same as other superior courts.” Collins v. Paepcke-Leicht Lumber Company, 74 Ark. 81-86. We, therefore, must apply here the rule “that where the record is silent with respect to any fact necessary to give the court jurisdiction, it will be presumed that the court acted within its jurisdiction.” Clay v. Bilby, 72 Ark. 101; Flowers v. Reece, 92 Ark. 611-616. (6-7) The judgment recites that W. J. Doke, administrator of the estate of R. D. Massey, deceased, “presents his application in due form, properly verified, for order and authority to complete a certain building begun by the intestate in his lifetime.” The application of the administrator is not set forth in the record, and we'must presume in favor of the court’s jurisdiction, that it set forth that Doke had possession and control of the hotel building, and that it would be necessary to sell the sarnie to pay the debts of the estate, and that in order to prevent its loss, and to preserve it to the estate for the purpose of paying the debts, it was necessary that the same be completed. In other words, we must presume that the petition which formed the basis of the court’s order, and the evidence which was adduced in support of the petition, showed every fact that was essential to give the court jurisdiction to render the judgment directing the administrator to complete the hotel building. The rule, of course, is different where the judgment of the probate court is rendered in a proceeding not in accord with its constitutional jurisdiction, or according to the course of the common law, but concerning a subject-matter the jurisdiction of which is conferred upon it by special statute. In such cases no presumptions can be indulged in favor of the court’s jurisdiction, but every fact essential to give the court jurisdiction and .to substantially meet the requirements of the statute under which the court is proceeding must appear of record. Beakley v. Ford, 123 Ark. 383; Reeves v. Conger, 103 Ark. 446-450. See, Landreth v. Henson, 173 S. W. 427, 116 Ark. 361. (8) The order of the court directing the administrator to complete the building and “to expend the funds in his hands for that purpose” was tantamount to an order in advance for him to pay for the labor and materials necessary to complete the building, as expenses of administration. Therefore, it was unnecessary to have the claims presented to the probate court to procure an order to the administrator for their payment. And since claims under contracts made, not with the intestate, but with the administrator, for the completion of the building could not be allowed and classified as claims against the estate, but could only be ordered paid as necessary expenses of administration, the course pursued of having these claims presented to the probate court for allowance and classification as claims against the estate was irregular. Yarborough v. Ward, 34 Ark. 204; Turner v. Tapscott, 30 Ark. 312; Bomford v. Grimes, Admr., 17 Ark. 567. But this irregular course pursued by the administrator, and the fact that he did’more than was necessary, or than he was required to do, did not affect his right to have the amounts he had expended for labor and materials approved and allowed by the court, as necessary expenses of administration, and to have his settlements credited with these amounts. Such was the effect of the judgments of the probate court, and the circuit court in overruling the exceptions to the annual settlements- of the administrator, and these judgments were correct. Third. 'Counsel for appellants concede that Doke, as the administrator, was liable on all contracts which Massey entered into, and which were undischarged at his death except such as depended upon the personal skill of the deceased, and that Doke was entitled to credit for such amounts as were properly allowed by the probate court, and paid by the administrator on these claims. Appellants contest here only what their counsel designate as “labor accounts, materials accounts,” and “miscellaneous accounts.” Counsel say that the miscellaneous accounts “are simply for material after the death of Massey,” except certain vouchers “which are for insurance taken out by the administrator. ’ ’ What we haye said disposes of the “miscellaneous accounts” that are for material furnished after the death of Massey. So far as the credits for insurance are concerned, counsel for appellant only abstracts one voucher, towit, No. 100, which counsel states “is for insurance upon the hotel, which -insurance' was taken out prior to the death of Massey.” Therefore, so 'far as this record discovers, appellee was entitled to the credit for amount paid for insurance. At"least, there is nothing in this record to show that the court erred in allowing appellee credit for the amounts paid for insurance. There are no reversible errors in the record, and the judgment is therefore affirmed. Hart and Kirby, JJ., dissenting.