51 So. 732 | Ala. | 1910
— This is a bill for the partition of lands —200 acres — with a prayer in the alternative for a sale
It is proper to notice some aspects of the bill. The widow is not a co-tenant with the heirs, and they cannot maintain a. bill for partition against her. Statutes for compulsory partition among tenants in common are for the purpose of avoiding the mischiefs which may grow out of vicious assertions by co-tenants of their
The assignment of dower and the allotment of home- ■ stpad are both steps appropriately incident to the administration of the estates of decedents in the probate court. If, on a bill filed for that purpose, the chancery court assumes jurisdiction of the administration of an estate, all incidental questions may and must be there settled, and nothing can thereafter be done in the probate court. But a bill for partition among heirs does not necessarily involve the administration of the estate of the deceased owner, nor does it necessarily draw to the chancery court jurisdiction of such administration. And the bill in the case at hand not only does not seek to have the estate of the deceased owner administered in the chancery court, but distinctly proceeds upon the. theory that no administration is necessary. The probate court acquired jurisdiction of the estate, by appropriate proceedings to that end as we must presume,- andf until that jurisdiction was ousted by- a decree of. the
The decree of the probate court allotting homestead had no effect to oust the jurisdiction of the chancery court. As against the widow’s quarantine, dower, or homestead exemptions, land as against the -rights of creditors, acting through the administrator, to have the lands sold for the payment of debts, the jurisdiction of the chancery court to award partition among the heirs was defectively invoked in the beginning. The plea setting up facts which destroyed the right of the complainants to have partition presently decreed in the chancery court was properly adjudged to be sufficient.
We may remark that the difficulties which will probably arise out of the present status of this cause may be obviated, and the principle declared in Baker v. Mitchell, 109 Ala. 490, 20 South. 40, and Tygh v. Dolan, 95 Ala. 269, 10 South. 837, observed, by amendment setting up the proceedings in the probate court, and praying a removal of the administration so begun into the chancery court where all such questions may be settled. Such au amendment will also obviate the plea. Or, in the absence of such an amendment, the plea must be sustained and the administration allowed to proceed in the probate court. If the administration should proceed to a conclusion in that court without a sale of the lands for division partition may then be had of such of the lands as remain after the allotment of homestead and assignment of dower, by an independent proceeding in either court.
Affirmed.