Alabama Attorney General Opinion 1979-0069

THE ATTORNEY GENERAL STATE OF ALABAMA • MONTGOMERY, ALABAMA 3613( rig 000&,9 CHARLES A. GRADDICK ATTORNEY GENERAL January 31, 1979 Honorable Frank Green Judge of Probate Blount County P. 0. Box 549 Oneonta, Alabama 35121 Probate Courts - Insane Persons - Minors. No publication is required of the application to the probate court for the sale of real estate of an insane person or minor to pay his debts. Husband who is guardian of his insane wife may sell her real estate to pay her debts. Dear Judge Green: I am replying to your request for an opinion from the Attorney General concerning the sale of the real estate of a non compos mentis by his or her guardian. You specifically asked the following questions: 1. Under Section 26-4-60 et seq., is the guardian of a non compos mentis or minor required to publish three weeks notice of his petition to sell real estate of a ward for the payment of the ward's debts as under Section 26-4-140 et seq.? 2. Is the guardian of a non compos mentis or minor required to publish three weeks notice of a proposed sale in order to sell real estate of a ward for the payment of the ward's debts? Honorable Frank Green January 31, 1979 Page 2 3. Does Section 30-4-30 et seq., prohibit a guardian from selling or alienating the real property of his non compos mentis spouse for the payment of her debts? I will answer your first and second questions together. Code of Alabama 1975, Section 26-4-140 through Section 26-4-155 controls the sale of a ward's property by his guardian for rein- vestment of the proceeds. As you stated in your letter the guardian is required by Sections 26-4-142 and 26-4-145 to publish a three week's notice of his petition to the probate court to sell the property from which he wishes to invest the proceeds. The provisions for the maintenance including the payment of debts of a ward, either a minor or an insane person, are found at Code of Alabama 1975, Section 26-4-60 through Section 26-4-68. There is no provision therein requiring publication of the request by the guardian to sell the real estate of the ward. Therefore, no publication is required of the application to the probate court by the guardian of a minor or insane person to sell real estate belonging to the ward for payment of his debts. Turning to your third question, Code of Alabama 1975, Section 30-4-30, provides for the conveyance by a husband of an insane wife of his real estate excluding the homestead. It does not concern the conveyance of the real estate of the insane spouse. Therefore, a husband who is appointed guardian of his non compos mentis spouse is not prohibited by this Article or any other law from selling the real estate of his insane wife to pay her debts provided it is done according to Code of Alabama 1975, Section 26-4-60 through Section 26-4-68. If this office can be of further assistance, please do not hesitate to contact us. Very truly yours, CHARLES A. GRADDICK Attorney General By- LYNDA F. KNIGHT Assistant Attorney General LFK/sg