Opinion
3 Div. 56.
May 25, 1933.
Appeal from Probate Court, Montgomery County; D. W. Crossland, Judge.
Wm. F. Thetford, Jr., of Montgomery, for appellant.
Only assets available for payment of debts are to be considered in passing on a report of insolvency. Life Ass'n v. Neville, 72 Ala. 517; Byrd v. Jones, 84 Ala. 336, 4 So. 375. Exempt property is not available for payment of debts. Banks v. Speers, 97 Ala. 560, 11 So. 841; Nicholas v. Sands, 136 Ala. 267, 33 So. 815; Code 1923, §§ 7926, 7918, 7919; Quinn v. Campbell, 126 Ala. 280, 28 So. 676.
Steiner, Crum Weil, of Montgomery, for appellee.
The issue was one of fact. In the absence of a bill of exceptions, the conclusion of the trial court is not reviewable on appeal. Jerrell v. Equitable Life Assur. Soc., 222 Ala. 687, 134 So. 132; Busenlehner v. Parsons (Ala. Sup.) 147 So. 633; Sovereign Camp, W. O. W. v. Ward, 201 Ala. 446, 78 So. 824.
This is an appeal under section 6003 of the Code of 1923, from a decree of the probate court dismissing the report of the executor that the estate is insolvent, made and filed as required by section 5995 of the Code, on an issue of the correctness of the report made by a creditor, First National Bank of Montgomery, and R. T. Rives, as the guardian ad litem for the minor heirs.
The issue was of fact, and the appeal is on the record without a bill of exceptions.
The decree, the basis of the appeal, recites: "After hearing the evidence the Court being of the opinion that the realty owned by said decedent at the time of her death was of the value of $3,000 and more." (Italics supplied.) In the absence of a bill of exceptions presenting a statement of the evidence, we are not in a position to review this conclusion.
There is nothing in the decree dismissing said report of insolvency that precludes the minor heirs, through their guardian or next friend from asserting and claiming their exemptions, or that denies to the probate court the power, or relieves the court of the duty, of causing such exemptions to be set apart. Code 1923, §§ 7918-7926.
Affirmed.
ANDERSON, C. J., and THOMAS and KNIGHT, JJ., concur.