{
  "id": 1873835,
  "name": "Gordon, Ad., vs. Howell, Guardian",
  "name_abbreviation": "Gordon v. Howell",
  "decision_date": "1880-05",
  "docket_number": "",
  "first_page": "381",
  "last_page": "384",
  "citations": [
    {
      "type": "official",
      "cite": "35 Ark. 381"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T19:23:57.212153+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Gordon, Ad., vs. Howell, Guardian."
    ],
    "opinions": [
      {
        "text": "English, C. J.\nThis was an application to the circuit court of Conway county for a certiorari, etc.\nThe petition was filed on the tenth of September, 1877, by Alfred E. Howell, as guardian of Margaret J. Bennett and Dyton Bennett, jr., minors, and Phcebe Howell (formerly Bennett), and her husband, Alfred E. Howell, and George W. Bennett, an' emancipated minor.\nThe material facts alleged in the petition are as follows:\nThat about the seventh of October, 1867, Dyton Bennett died intestate in Perry county, Arkansas, leaving him surviving as his only heirs at law, said Margaret J. Bennett, Dyton Bennett, jr., George ~W. Bennett, and Phcebe Bennett (who had since intermarried with Alfred E. Howell), all of whom were his children, and yet minors except Mrs. Howell; and that Howell had been duly appointed guardian of the minor plaintiffs except George W. Bennett, who appeal\u2019s to have been emancipated.\nThat Dyton Bennett was a resident of Perry county at the time of his death, and thereafter Anderson Gordon was appointed administrator of his estate by the probate court of said county of Perry, and said administration had remained in said county, and had never been finally closed up.\nThat deceased left land in Perry county, and a laige amount of personal property, which went into the hands of Gordon as his administrator, and that there were but a few hundred dollars of claims probated against the estate, etc.\nThat deceased was also the owner of river bottom lands situated in Conway county, which are described of the value of $1,500, and which, on his death, descended to his heirs at law.\nThat on the twelfth of October, 1869, Anderson Gordon, as such administrator, procured an order of the probate court of Conway county, to sell said lauds at private sale for the alleged purpose of paying debts of the estate. A transcript of the petition and order of sale are exhibited.\nThat no further proceedings were had in the probate court of Comvay county in relation to the sale, no report of sale of the lands having been- made, but that Gordon was attempting to set up some claim to the lands under and by virtue of the order; and that he had never been finally discharged as such administrator, etc.\nPetitioners submitted that the probate court of Conway county had no jurisdiction to make said order of sale, there being no administration of the estate pending in that county.\nThat there was no law authorizing an order for an administrator to sell real estate at private sale to pay debts. And that the probate court of P.erry county, where the administration upon the estate was granted, and pending, only had jurisdiction to make an order for the sale of said lands to pay debts, etc.\nPrayer for certiorari to the clerk of the probate court of Conway county, commanding him to make out and certify to the circuit court a transcript of the record of the proceedings of said probate court in the matter of said order of sale, etc.\nGordon, who had notice of the application, appeared and consented to the issuance of the writ of certiorari, upon which the clerk of the probate court returned a transcript of the petition and order of sale, nothing further relating to the matter appearing of record.\nAfter the return, the case was submitted to the court on demurrer interposed by Goi\u2019don to the petition; the court held that the order of sale was null and void, because the probate court had no jurisdiction of the subject-matter, and rendered judgment quashing 'the order, and Gordon appealed to this court.\nBefore the adoption of the Code, an application for an order to sell lands to pay debts had to be made by an executor or administrator to the probate court of the county in which the lands were situated Gould\u2019s Digest, sec. 165, Chap. IV.\nBut by sec. 88 of the Civil Code, \u201c An action for the distribution of the estate of a deceased person, or for its partition among his heirs, or for the sale of real property, must be brought in the county in which his personal representative was qualified.\u201d See, also, Gantt\u2019s Digest, secs. 168, 4536.\nHere the administration was in the probate court of Perry \u25a0county, and the lands ordered sold were in Ccmway county, where there was no administration of the estate of Bennett.\nIt was not a mere error for the probate court of Conway county to make the order of sale, to be corrected on appeal, as submitted for appellant, but the court had no jurisdiction of the subject-matter, and its order was, therefore, void, as held by the court below.\nAffirmed.",
        "type": "majority",
        "author": "English, C. J."
      }
    ],
    "attorneys": [
      "Coblentz, for appellant.",
      "W. N. May, contra."
    ],
    "corrections": "",
    "head_matter": "Gordon, Ad., vs. Howell, Guardian.\nAdministration : Venue in sale of deceased's lands.\nJ urisdiction for the sale of a deceased\u2019s lands is only in the probate court of the county in which the personal representative was qualified \u2014 not in another county in which the land may be situated.\nAPPEAL from Conway Circuit Court.\nHon. Thomas W. Pound, Circuit Judge.\nCoblentz, for appellant.\nW. N. May, contra."
  },
  "file_name": "0381-01",
  "first_page_order": 379,
  "last_page_order": 382
}