Opinion
8 Div. 914.
March 23, 1939.
Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.
Peach Caddell, of Decatur, for appellant.
Administratrix has the right to possession of the lands of deceased, as against heirs, until the debts of decedent have been paid and it has been determined whether or not it is necessary to sell lands for payment of debts. Hence, the court would not have jurisdiction to sell for partition under Code, § 9331, the land not being held by tenants in common until the debts of the estate are paid. Administratrix would have a right under Code, § 5858, to have the land sold for payment of debts, and, therefore, until the debts of the estate are paid the land could not be sold for division on petition of an heir. Complainant must be entitled to possession or immediate use of the proceeds after sale in order to compel a sale for partition. Fies v. Rosser, 162 Ala. 504, 50 So. 287, 136 Am.St.Rep. 57.
Ben L. Britnell, of Decatur, for appellee.
The demurrer was general and addressed to the bill as a whole. The bill contained equity, and therefore the demurrer should have been overruled. Long v. Monroe County Bank, 226 Ala. 26, 145 So. 471; Hunter v. Watters, 226 Ala. 175, 145 So. 472. All claims were in that were not barred, and no attempt was made by the administratrix to sell the lands to satisfy claims. The lands were owned by testatrix at the time of her death, and complainant was owner of an undivided interest immediately upon the death of decedent as an heir at law, and was entitled to require partition, the prayer of the bill asking the withholding of a sufficient amount with which to pay debts. Nelson v. Atkins, 215 Ala. 88, 109 So. 882; Anderson v. Steiner, 217 Ala. 85, 115 So. 4, 7.
This is a petition or bill in chancery by an heir at law and tenant in common with his coheirs to remove the administration into equity by virtue of section 6478, Code, and as an incident in the administration to sell the land for division, with a reservation of a sufficient amount, if necessary, to supplement the personal property in the payment of debts. It was filed more than six months after the grant of letters of administration, in which debts and claims must be filed, — section 5815, Code, as amended by Acts 1931, page 840, — and alleges the nature and amount of all claims that were filed as required. It also alleges that the administrator has filed a petition in the probate court to sell the personalty to pay the debts.
There was demurrer to the bill testing its equity on various grounds. This demurrer was overruled and respondent appealed.
Its equity may be predicated on the right of an heir to remove the administration into that court. The statutory allegations are made in the bill. And when that is the situation an heir has the right to petition for the sale of the land for division on the ground that it cannot be equitably divided without a sale. In such a proceeding the court will be careful to see that a necessary amount of the proceeds of sale is set apart as a fund to take care of the debts remaining unpaid, including costs of administration, after the personalty is exhausted. Nelson v. Atkins, 215 Ala. 88, 109 So. 882; Hale v. Cox, 233 Ala. 573, 173 So. 82; Ex parte Stephens, 233 Ala. 167, 170 So. 771; Anderson v. Steiner, 217 Ala. 85, 88, 115 So. 4.
The facts alleged in this bill are essentially different from those shown in the case of Hopkins v. Crews, 220 Ala. 149, 124 So. 202, and it is based on different equitable principles.
The decree of the court overruling the demurrer is without error, and it is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.