47 Ala. 517 | Ala. | 1872
The appellee, Mobley, as the administrator of the insolvent estate of Eaton, filed a motion in the probate court to set aside and declare null and void a decree of the said court, rendered in 1859, ordering a sale of certain lands belonging to the said estate, the sale itself, and the decree confirming the sale. The grounds of this motion were — 1 st, the application for the sale shows on its face the want of jurisdiction in the court to order the sale ; 2d, no guardian ad Hi cm for the minor heir was appointed, and no one acted as such guardian until the day the decree of sale was rendered; 3d, less than forty days intervened between the filing of the petition and the day appointed for its hearing; 4th, the proof of the necessity of a sale was not taken as required by law. The court rendered a decree in conformity with the motion, basing it upon the 1st and 4th grounds above stated.
A sale of the real estate of a decedent, under a decree of the probate court, vests in the purchaser only the title which the ancestor had, and which descended upon his heirs-at-law. The widow’s right to dower is unaffected by the sale. She is entitled to have her dower set off by metes and bounds, when it can be done; and when it can not, as in the case of a city lot where there are improve