Forrester v. Forrester, 38 Ala. 119

Forrester v. Forrester

38 Ala. 119 | Ala. | 1861

R. W. WARNER, J.

In,the case of Martin's Heirs & Adm'rs v. Martin, (22 Ala. 86,) it was-held that a petition*! for dower -must show who were the heirs-at-law of the deceased. This rule has been incorporated into our statute láw. Section 1361 of the Code provides*, that the petition - for dower “must contain”, among other things, “the-names of the widow and heirs-at-law.”' The petition in-this case fails to state who are the heirs-at-law of the intes- . fate, unless that is done by the averment that “he left him . surviving” certain • children---and grandchildren, whose-• names are given.. We do not think that this* allegation satisfies the statute.. The form of. averment adopted is con- . sistent with the supposition- that-, there are other children . and grandchildren-than those named" in*-the petition, and! who equally with* those namecPare heirs-at-law of the deceased. As this objection is fatal to- the petition,- we need* not inquire whether any of the other grounds of demurrer were well taken-.- They can all be readily obviated in tb© probate court by an amendment - of ,the petition. Neither do we think it -necessary to examine as to the alleged irregularities in the subsequent, proceedings rmihe probate court. All of these can be avoided' in* >the future conduct of the case.

[2.] It may not be amiss, however, to- make a remark as to the matter .-alleged in the special plea interposed by the administrators., It. .is true that',a sale of real estate, under *121an order of the probate court, does not affect the widow’s right of dower. — Owen v. Slatter, 26 Ala. 547. It is also true, that while the Code provides, that when the land has been aliened -in the life of the husband*, the petition must contain theuiame of the alienee, and bis-residence, if known, (Code, § 1361,) it does not make the same requirement where the land has -been sold under an-order of the probate court, after- the death of the husband. But,, where the land has thus been sold after the husband’s death,-.and has passed into the possession of the purchaser, there can be, to say the least, no impropriety iimalleging thafefact in-' the petition, and giving notice of the application-to the purchaser. Parties will be on the safe -side if they,pursue this-course.

For the error pointed out, the decree is- reversed, and the cause remanded.