9 Port. 497 | Ala. | 1839
was a bill filed in chancery,- for a partition of lands.
The principal question to be determined in this case* is whether, where a person dies without children, or brothers or sisters, or the descendants of such, or father or mother, his lands shall descend to his paternal and maternal uncles and aunts equally, — or whether it shall descend in the line of the blood of the first purchaser, who, it is alleged in the answer, was the father of the deceased.
As the answer contains a demurrer to the bill, it is
Whatever may have been the origin of the jurisdiction, it is now very clear, that an application to a court of chancery for that purpose, is not addressed to the discretion of the court, but is a matter of right, if the title of the plaintiff is admitted or clear. “ Bui if the title be denied, or it depends on doubtful questions of law, or complicated facts, the court will not dismiss the bill, but will retain it until the parly shall have established his right at law” — (See the case of Straughan and others vs. Wright and others, 4 Rand. Rep. 493, where the case is very lucidly stated; and also 1 Story’s Equity, 599; Mitford on Pleading, 170; Wisely vs. Findlay and others, 3 Rand. Rep. 361; Barry vs. Nash, 1 Vesey & Beam, 552; Agar vs. Fairfax, 17 Vesey, jr. 551.)
The question of title in this case, is one of undoubted law, arising on the construction of our statute of descents, and it would subserve no other purpose than to promote litigation and expense, to require the complainants to establish their title at law.
It is further insisted, that as there is no allegation in the bill, that the deceased had neither brother nor sister, or descendants of such, that the complainants have not
The'material question in this case, is, whether it was the intention of the framers of our statute of descents, that, on failure of lineal descendants, the estate should only descend to those collateral relations, who are of the blood of the first purchaser, which is the fifth canon of descents, as laid down by Blackstone in his Commentaries.
The affirmative of this proposition, is maintained by the counsel for the plaintiffs in error. The first purchaser of the lands in controversy, having been the father of the intestate, — and the wife of the defendant, Deloney, being his paternal aunt, — it is insisted, that she will take the whole estate, to the exclusion of the complainants, who are the maternal uncle and aunt of the deceased. The statute is in these words:
“ Where any person shall die seized of any estate or inheritance in lands, tenements or hereditaments, not devised, the same shall descend to his or her children, and.
It is impossible, we think, to doubt that it was the intention of the Legislature to abrogate the entire common
But there is error in the interlocutory decree of the chancellor, directing the lands to be sold. We cannot 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; no such consent appears in the re-
The proper mode of proceeding is, after partition made, to direct each party to convey to the other — (1 Story on Equity, 606, and cases there cited.) The decree must, therefore, be reversed, and the cause remanded for further proceedings. As this point was not made in the argument, and as it is probable the case was brought here merely to ascertain whether the complainants had title, each party will pay his own costs in this court.