Pine Bluff daily graphic., 1902-11-26
Arkansas Probate Courts
Weld AutOCratiC Power

all parties, but the Arkansas system
is unjust to the heirs because it gives
them no chance to be heard in the pro-
bate court before an order is made
for the sale of decedent's land to
pay the claims fled against his estate.
The legislature evidently intended
that the heirs should have a right to
make defense to such a petition in
the probate court, as the statute eX-
pressly says that no order for the sale
of a decedents land to pay debts
shall be made unless it shall appear
to the court that notice has been
given by publication for at least four
weeks before making such application.
(Arkansas Digest sec. 1917 But the
Supreme Court repealed this statute
when it said that notice was neces-
sary, and that the probate court can
make the order of sale without it,
O3 Ark, 507; 81 Ark, 74)
Upsets the Constitution.
Mr.. Blackstone says the constitu-
ton is at an en-, ,6elojen 6Illjen courts disre-
gard the statutes : Ected by the leg
islature; and in 81 Ark, 343, the judg-
es of the supreme court rebuke
their predecessors for having con-
sidered violations of statute laws
by Probate Courts as mere irregular
tiles
The parliment of England by statute
0 NJ. &, NJ. st. 2, Oh. q declared that
the suspending or dispensing with
laws by regal authority without con-
sent of parliment is illegal Obi. Com.
vol. /, sec. 1867
The king Of England is not permit
ted to suspend or dispense with an
act of pariment, but here are judges
of probate courts in this state con-
verting statute law into blank paper
so far as their courts are concerned,
and treading the common law under
their feet regardless of the public well
fare.
Sample of the Wrong.
Only few years ago one of the
probate courts of Arkansas allowed
a large number of accounts as claims
against a decedent's estate amount.
ing in the aggregate to nearly $4,000
even though said accounts were not
created by him in his lifetime; and
made an order for sale of the deced-
ents land to pay them notWithstand-
ing the fact that no one has legal
right to bind the estate of dead
man by making contracts for him
ga Ark, 438); and Notwithstanding
the fact that the common law of all
the States in the American Union,
as shown by their supreme court
decisions, positively declare that:
probate courts possess no power
to allow any claims against deced-
ent's estate, Or to order the sale
of land belonging thereto, except for
the payment of the debts of the de
ceased: that is, those in existence at
the date of his DEATH" (61 Mo-, $40;
ILL.,, 465, ct all
Arkansas Should Have it.
This common law principle should
be enacted by the legislature into a
statute. and the judges of the probate
court should be compelled to respect
it. and to respect all positive require
ments of the statute law, under the
penalty of an indictment, as moth
ing is compulsory but punishment
And furthermore. as the jurisdic-
tion of the Probate Court has been
placed by the constitution under the
control of the legislature (article Z,
ection 80. the power to order de-
cedent's land to be sold for the pay
ment of debts should be taken from
this court and given to court OF
equity, where it properly belongs; and
no one should be permitted to file a
bill or petition for the sale of a de-
cedent's land to pay debts except
creditor, for the benefit of himself
and all other creditors, to which peti.
| ton the heirs or deViSeeS and admin
istrator should be made defendants,
else the sale should be void. And
last, but not least, the right to have
| special issues in equity tried by jury
should be established and preserved
| in Arkansas as it is in Tennessee.
| J. r. Beasley.
| Forrest City, Ark. Nov 1902.
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