Pine Bluff daily graphic., 1902-11-26

j, r. Beasley. of Forrest City. Ark.
writes to the Commercial Appeal the
following criticism of the probate
courts of Arkansas:
In the case of the State Bank VS..
Cooper. 9 Yerger, 599, the supreme
couo of Tennessee said that arbitrary
mower is not possessed by any depart
uent of the State government.
But this remark would not be true
if it were not applied to the probate
courts of Arkansas.
In Tennessee there are several
courts which have the power to make
an order for the sale of decedent'
land to pay debts, but none of them
can do so until bill or petition is
filed bv the administrator. or by a
creditor for the benefit of himself and
all other creditors, to which the heirs
or deyisees of the deceased must be
made defendants. else the sale will
be void 90 Hum.,223
But in Arkansas the petition can
be filed in the probate court without
making the heirs defendants, and the
order of sale can be made without
notice to them. (13 Ark, 740.)
Under the Tennessee practice, which
was first introduced by the act of
1927, all parties have fair chance
to be heard before an order can be
made to sell decedent's land for the
payment of debts. but under the Ark
ansas practice the heirs are not per-
mitted to make any defense at all
to such petition in the probate
court
Opens Door to Frand.
Illegal or fraudulent accounts
amounting to thousands of dollars may
have been allowed, without the know
ledge of the heirs, by the administra-
tor and probate Judge as claims
against the decedent's estate, but this
makes no difference in Arkansas.
The order of the court allowing these
accounts has 1.-The same force and eft.
feet as Judgement" Digest, sec.
1867 And when the administrator files
a petition in the probate court for
an order of sale of the decedent's
land to pay them, the heirs are not
permitted to answer the petition and
show by way of defense that the
pretended claims are unjust, illegal
or fraudulent.
Then what are the heirs to do to
protect themselves against the arbit-
rary power of the probate court?
Carries Great Hardship.
Our supreme court, in recent
decision, says the only remedy for
the heirs is by filing an original bill
in court OF equity.
But if the owners of the illegal
or fraudulent accounts are very num-
erous and do not live in Arkansas,
large amount of trouble and eX-
pense is involved in getting them
before a court of equity as defend
ants so as to give the court jurlsdlc-
ton to make a decree against them.
No such difficulty presents itself
under the Tennessee system. Under
that system the heirs are not compel
led to go to the trouble and expense OF
filing in a court of equity to set aside
fraudulent judgments rendered against
the administrator in court OF law
The title of the land is in the heirs,
and they have nothing to do but wait
until the administrator or a creditor
files a bill or petition in the chanc-
cry or circuit court for sale of
the decedent's land to pay debts.
(Code, 926D and then they have a
right to file an answer and make every
defense which the administrator
might have made q Yerger, 5S; 2
Yerger. 10)
Rights Of Heirs.
The judgement of real or pretended
creditors against the administrator
amount to nothing under the Tennes-
see system when a bill is filed against
the heirs for the sale of decedent' S
land to pay debts. and the heirs have
a right to contend.
l. That the personal estate has not
been exhausted.
2. That it has been wasted and the
creditors remedy is on the administra-
tors bond.
8. That the debts for which the fand
is sought to be sold are not Justly
due. 90 Hum. 223)