51 Ala. 377 | Ala. | 1874
Under the statutes prior to the Code, it was repeatedly adjudged by this court, that commissioners, appointed by the orphans’ court, to make division of the estate of a decedent between his heirs and distributees, had no authority to order or require one distributee to pay another a sum of money to equalize the distribution; that their only power was to make an equal division of the estate, if it was susceptible of it, and, if not, so to report, that a sale for division and distribution could be ordered. A confirmation of the division or partition by the orphans’ court, when it directed the payment of money by one distributee to another, did not impart to it validity. Teat v. Lee, 8 Porter, 507; Jones v. Jemison, 4 Ala. 633; Duval v. Chaudron, 10 Ala. 391; Allen v. Raney, 19 Ala. 68. The Code has not, in this respect, enlarged the authority of the commissioners, or the jurisdiction of the court of probate, but substantially reenacts the previous statutes. The claim of the appellee to a recovery, if it rested alone on the award of the commissioners, could not be sustained. But it fully appears that the partition made by the commissioners was adopted by the parties, recognized and acted on as valid, for such a length of time that, to permit any one of them now to repudiate it, would be a fraud on the others. For more than six years before this suit was commenced, the appellant and the appellee had each possession of the lands awarded them. Six years after the allotment, they appear in the court of probate,
The judgment of the circuit court is affirmed.