Backes v. Reidmiller

Hart, J., (after stating the facts). Lands are only assets in the hands of an administrator for the payment of the debts' of the intestate where the personal 'property of the estate is'insufficient to pay the debts. Doke v. Benton County Lumber Co., 114 Ark. 3. There is no statute in this State limiting the lien of a decedent’s debts against his realty. But it has been uniformly held that an application for the sale of a decedent’s realty to pay his debts must be made within a reasonable time, and such time has been generally fixed by analogy with the statute of limitation for bringing an action to recover real estate. The reason upon which the limitation is placed is that the heirs are entitled to the possession of the real estate in order that they may improve and enjoy it as early as a just regard for the rights of creditors will permit, In Roth v. Holland, 56 Ark. 633, in discussing the question the court said: “But delay .on part of creditors alike postpones the unconditional enjoyment of the heir and deters him from improving oi selling his inheritance, whether it relates to the procuring of letters or of an order of sale; and if it is sufficient to bar the power to sell in one case, for exactly the same reason it should be in the other. Delay in taking out letters, and delay in applying to sell after they are taken out, alike keep alive uncertainty in the tenure of the heir, and are alike due to the nonaction of the creditor. Nor, although letters are issued upon application of the administrator, it is within the power of creditors to compel administration after thirty days from the debtor's death, and, if it is delayed, it is as much due to them as is the delay in applying for leave to sell. Our conclusion-therefore is that the right to sell is lost by delay in administering, whenever a like delay after administering, in procedings to sell, would forfeit it. Unknown Heirs of Langworthy v. Baker, 23 Ill. 491; Richard v. Williams, 7 Wheat. 116. See also, Brogan v. Brogan, 63 Ark. 405, and Brown v. Nelms, 86 Ark. 368, and cases cited. It appears from the record that letters of administration were granted upon the estate of Michael Backes, deceased, soon after his death in 1907. The present action to subject the land belonging to his estate to the payment of his debts was not begun until August 9, 1918. The personal property of the estate was turned-over to the widow in 1908. The administrator filed an account purporting to settle all the funds belonging to the estate in his hands in. 1913. While he was not formally discharged as administrator, he abandoned the administration of the estate from that time, and soon afterwards left the State for a period of two years. After his return ho took no further stems in the administration of the estate. As we have just seen, the proceeds of the personal property of the estate, except a small part'used in paying the costs of administration, were turned over to the widow in 1908. The lands then became subject to the payment of the debts of the estate, and no excuse whatever is given for the long delay in applying for the sale of the real estate to pay the debts. Therefore we hold that the delay was unreasonable, and, no excuse having been made for it, the lapse of ten years from the time it became known that the land would be needed for the payment of debts until the present suit was brought will operate as a bar to a sale thereof. In this view of the case it does not make any difference whether the application should have been made to the probate court or whether chancery was the proper forum, because the administrator had abandoned the administration of the estate before he was discharged by the probate court. From the views we have expressed it results that the chancellor erred in granting the application of the plaintiff to sell the real estate of the decedent for the payment of his debt, and for that error the decree must be reversed. Inasmuch as the case has been fully developed, the cause will be remanded to the chancery court, with directions to dismiss the complaint of the plaintiff for ,want of equity.