Petition by Administrator to Sell Lands to Pay Debts,

Appeal from the Probate Court of Mobile county.

Heard before Hon. Price Williams.

Appellee Graves filed his petition in the Probate Court of Mobile, praying for letters of administration on the estate of Clara E. Lott, who was the wife of the appellant Lott.

This petition averred that petitioner was the largest creditor of said intestate ; that his claim'was for the funeral expenses ; that the property of said estate consisted wholly of realty, which was the equitable separate estate of Clara E. Lott; that appellant was insolvent; that the funeral expenses were incurred by appellee wholly on the faith and credit of said estate; that said expenses were essentially necessary for her suitable interment.

Letters were granted to appellee by the court, and subsequently he filed a petition to sell the land for the payment of debts.

Appellant, and the heirs of Mrs. Lott demurred, because the petition did not show :

1. That the land was the equitable separate estate of Mrs. Lott, and the petition did not show that the claim for the payment of which it was sought to be sold was founded on any contract, either express or implied, made by Mrs. Lott.

2. Because the debt was for funeral expenses, and was the debt of the husband.

3. Because the petition showed that the debt was contracted after the death of a married woman by some one, and that her separate equitable estate was not liable for it.

The court overruled these demurrers.

Appellee testified that the articles composing his claim against the estate were ordered by the husband of Mrs. Lott at the time of her death; that Mrs. Lott “made no bill with him” during her life; that he knew of only one debt against the estate, viz.: his own account for the funeral expenses ; and that no claims had been filed against her estate.

Appellant then made a motion to vacate the letters of administration which had been granted to appellee, on the ground that the testimony showed, that while the letters had been granted to Graves as the largest creditor of the estate, he was not a creditor of Mrs. Lott, but of her husband, and because it appeared that no claims had been filed against the estate, and it had not been shown that there were any creditors.

The court overruled this motion and granted an order to sell the land for the payment of debts. This action of the court is assigned as error.

— At common law it was the duty of the husband to maintain the wife while living and to bury her when dead, and this duty is in no way impaired or lessened by the fact that the wife may have or leave an equitable or statutory separate estate.— Gunn v. Samuels, 33 Ala. 201; Smyley v. Reese, 53 Ala. 97. Nor does it matter that the husband is insolvent.— Gunn v. Samuels, supra.

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