Brown's Heirs v. Powell

45 Ala. 149 | Ala. | 1871

Lead Opinion

PECK, C. J.

1. The first error assigned raises the question as to the propriety of the decision of the court, in striking out the plea in abatement. As, after plea in bar to the action, the defendant can not plead in abatement, so we hold, that if, after the defendant has filed a plea in abatement, and before it is disposed of, he pleads in bar to the action, and under such plea the parties proceed to take depositions and to prepare the case for trial on the merits, he should not be permitted afterwards to insist on his plea in abatement, but should be held to have waived the same. To hold otherwise, would be to suffer the well settled rules and order of pleading to be violated, to the injury and prejudice of the plaintiff, by delaying the trial of the cause on its merits, as well as inducing the plaintiff to incur unnecessary trouble and expense in preparing for a trial that might never take place. For these reasons, we hold, the court committed no error in striking the plea in abatement out of the record.

2. The demurrer to the second plea was properly sustained. This plea, with the amendment, must be considered together; and so considered, to be consistent with itself, it means, if it means any thing, that by excluding the heirs, who had been advanced as stated in the plea, the lands of the deceased could be equitably divided amongst the heirs who had received no advancements. The plea, so considered, was no defense to the application to sell the lands of the deceased for distribution.

The heirs alleged to have been advanced were necessary parties defendants to the application of the administrator to sell the lands of the deceased for distribution. — Revised Code, § 2222,

On the death of deceased, his lands descended to all the heirs alike, as well to those who had, as to those who had not received advancements, and their title as heirs could only be divested in the probate court by a sale. Section z228 of the Revised Code provides, that the probate court may make an order for the sale of the lands of a deceased party, for distribution, if it is proved they can not be equitably divided amongst the heirs. Therefore, the real issue in this case was, could the lands of the deceased be equitably divided amongst all the heirs ? If they could not, the court committed no error in ordering them to be sold for distribution; consequently, any evidence offered by the contestant that did not tend to prove that the land could be equitably divided amongst all the heirs, was not pertinent to the issue, and for that reason might be rejected as irrelevant. Evidence that some of the heirs had received advancements, in the life-time of the deceased, to the full amount of their distributive shares of the estate, did not tend to prove the issue to be tried by the court, and for that reason it was not an error to reject it.

The purpose of the contestant in resisting the application was, we suppose, not only to prevent a sale of the lands, on the ground that some of the heirs had received advancements to the full amount of their interest in the estate, and by excluding them the lands could be equitably divided amongst the heirs who had not received advancements, but also, in some way, to have their title in the said lands divested out of the heirs that had been so advanced. Neither of these things, as we have seen, could be done in the probate court.

Whether the contestant can accomplish his purpose in any proceeding in a court of equity, is not necessary, and, perhaps, is not proper, to be decided in this case. The probate courts have only limited, special powers conferred upon them by our statutes, and the powers given to them by section nine of article six of our present constitution. In a proceeding of this sort, they can only order the lands to be sold, or deny the application. This disposes of the second and third errors assigned.

8. Under the fourth error assigned, it is insisted the court erred in permitting the administrator to amend his petition as stated in the bill of exceptions. There was no error in this. It was a matter in the discretion of the court, and if the contestant was thereby embarrassed in his defense, or the condition of the case was so changed as to render new pleas necessary, or other evidence than that he had already taken, he should have asked the court to postpone the further hearing of the case, and to grant him time and leave to file other pleas, and to take further testimony.

A The fifth assignment is, that the court erred in ordering a sale of the lands. If the evidence was sufficient to authorize a Sale, then there was no error in making the order for that purpose, if the evidence was credible, we think it was sufficient to prove the necessity of a sale. It was the peculiar province of the court to judge of the credibility of the evidence, as well as its sufficiency. Unless, therefore, the record shows the court was clearly mistaken in this, the decree should not be reversed.

As we have discovered no reversible error in the record, the judgment and decree of the probate court is affirmed, at the costs of the appellant.

---

Dissenting Opinion

B. E. SAEEOLÚ, J.,

(dissenting.) — I dissent from the judgment of the court for the following reasons The administrator applied to the probate court for an order to sell the lands of his intestate, because the same could not be equitably divided amongst the heirs. . One of the heirs •contested his application, by what may be called a special plea that three of the heirs-at-law of the decedent had received such a proportion of property by way of advancement as would preclude them from any further interest in the estate, and by the exclusion of these from the number of the distributees, the land could be equitably divided. A demurrer was sustained to this plea, because it did not deny that the persons to be excluded were heirs-at-law, and therefore the evidence respecting advancements to them was irrelevant. The evidence adduced by the administrator in support of his petition, disclosed that the land could be equitably divided among the remaining distributees, if the three who had received advancements were excluded from the distribution; otherwise, it could not be, The court excluded its own decrees ascertaining the fact, and valuation, of the advancements made to the three. Upon this state of pleading and proof, the court ordered the sale of the lands.

On the question, whether land can be equitably divided or not, what more pertinent inquiry can arise, than how many are to receive a share ? It is the very beginning and essence of the issue. It may be said that the ascertainment of the heirs-at-law of an intestate, is a discovery of the number of shares to be allotted. But how, if it be shown that some of them have already received their proportion ?

If the children of a decedent severally received in his life-time^more of his property than is left at his death for one unprovided for, shall the estate of that one, infant or adult, be sold on the application of the administrator, without or against his consent, because the others are heirs-at-law, though not entitled to distribution? Shall this be done merely because the court is incompetent to try the issue ?

The partition and distribution of property is essentially an equitable jurisdiction; and the probate court, in the exercise of its limited powers over the subject, may well be governed by the rules and practice of the chancery court. That court, in entertaining a bill for the partition of lands, was accustomed. to send questions of law to a law court for settlement, until the statute of 1858 (Revised Code, § 3466,) clothed it with authority to act independently. It never thought of ignoring a plea, for want of power to determine it, but rather of dismissing the bill for want of jurisdiction to try the cause.—Ormond v. Martin, 37 Ala. 598: Horton v. Sledge, 29 Ala. 498.

In Deloney v. Walker, (9 Por. 497,) Judge Ormond said ; “We can not suppose a case in which the lands of an adult can be sold by a decree of the chancellor to make partition, without his consent.” In McCain v. McCain, (12 Ala. 510,) the question is asked, “whether an order for the sale of land for distribution obtained by the administrator is compulsory, or may he not for good cause refuse to sell,” so lightly was the jurisdiction esteemed. In the same case it was held, that the probate court had no jurisdiction to order a sale of land which had been sold to the deceased in his life-time, but the purchase-money had since his death been paid by his administratrix, and the title taken in the name of the heirs, notwithstanding the petition alleged title in the decedent: By repeated decisions of this court, the jurisdiction of the probate court attaches on the reception of a proper petition. If the jurisdiction to inquire is divested by the result of that inquiry, in one case, as above, why may it not be so in another ? If in this case the contestant pleads want pf title or interest of sonae of the heirs in the lands, why disregard his plea ? If the court can not try the issue, why entertain the cause ?

I insist that the inquiry which the court is required to make does not involve or jeopard the title of the heirs who have received advancements more than that of those who have not. It is the action invoked that must be proven to be necessary, not the non-action. If the proof fails for any reason, the sale can not be ordered. If the sale be denied, the parties are left as they were ; but if it be made, the title o.. all is divested, not because justice and equality require it, but because the limited jurisdiction of the court is sufficient for wrong, but inadequate to prevent it.

In what condition does the affirmance of this decree leave the contestant and other heirs who may be opposed to the sale? Can the chancery court intervene? The chief-justice hesitates to say. This court says the decree was rightfully made. If so, the chancery court can not prevent its execution. The judgment of a court of competent jurisdiction can not be assailed except for fraud.

In my opinion, the plea of the contestant was a good one; the demurrer ought to have been overruled, the decrees ascertaining the advancements ought to have been admitted in evidence, and the order of sale ought to have been refused.