Page v. Matthews' Adm'r

41 Ala. 719 | Ala. | 1868

JUDGE, J.

In Cloud and Wife v. Barton, (14 Ala. 347,) it was held, that a petition by an administrator, for the sale of land of his intestate, which stated that Anne B. Cloud, the wife of N. B. Cloud, was the sold child and heir-at-law of W. B., deceased, and that she resided near Tuskegee, in the State of Alabama, with her husband, was insufficient to authorize the orphans’ court to decree a sale of the land, as it did not specify the ages of the heir-at-law and her husband. This adjudication was made under the influence of the statute of 1822, which, with a single exception not necessary to be here named, was in substance the same as section 1868 of the Code, under which the present application was made; each statute requiring it to be stated in such an application which, if any, of the heirs or devisees are under the age of twenty-one years.

It is stated in the application before us, that Revella V. Moore, and Rutha F. Page, the wives respectively of Milton J. Moore and John R. Page, are “distributees of the estate ;” but the ages severally of the husbands and wives are not stated. It is also averred that four of the “distributees,” who are described by name, are minors. This averment of the minority of four of the parties, is not a statement, by legal implication even, that the two married women and their husbands, whose ages are not given, are adults; and it has been the established doctrine of this court, for nearly thirty years, (and we are not aware that it has ever been departed from, in a direct proceeding on error or appeal,) that, as the statute under which such a proceeding is had, is explicit in declaring what must be stated in the application, its terms are to be regarded as imperative.—Griffin v. Griffin, 3 Ala. 623. See, also, Hoard v. Hoard’s Adm’r, at the present term.

2. Another defect in the proceedings below is as follows: Section 1870 of the Code requires, that, “if any of the heirs or devisees are married women, the citation must be served on the husband, as well as the wife.” This provision of the Code was not complied with; and nothing appears in the proceedings to cure the omission, in so far as the husband Page is concerned.

Eor the errors pointed out, the decree of sale must be reversed, and the cause remanded.

Chief-Justice Walker agrees, that there must be a reversal in this case, on account of the want of notice to the husbands of the married women. Upon the other point, a decision is not, in his judgment, necessary, and he remains uncommitted as to it. He has no doubt that it must be shown whether the distributees are infants; but he is inclined to think that the petition, construed as such instruments ought to be, when not objected to in the court below, shows which are infants, and which are adults.