B. F. SAFFOLD, J.<
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.
*523It seems that this estate was rendered insolvent by damage sustained during the late war. The application for the sale of the land was made in 1859, by the same person, as administrator, who now moves to set aside the order of sale he obtained and the subsequent proceedings consequent upon it. In Satcher v. Satcher, (41 Ala. 28,) the doctrine is clearly and emphatically declared, as the result ■ of the decisions in this State, that a sale of a decedent’s real estate, under an order of the probate court, rendered upon a proper petition stating therein a statutory ground for a'sale, is not void, except only where there are minors or persons of unsound mind interested, proof by deposition, as in chancery cases, showing the necessity of a sale, must be taken. In this case, the record recites that proof was taken as in chancery cases; and the petition alleges that the said real estate can not be fairly and equitably divided amongst the heirs of the deceased without a sale. But the petition further discloses, that “ the said deceased left the following heirs, viz., Amanda Eaton, widow of said deceased, and Alice Eaton, an only child, and under twenty-one years of age.” The action of the court was invoked under its authority to order a sale of the lands of an estate when the same can not be equitably divided amongst the heirs or devisees. — Rev. Code, § 2221. Is the statement in the petition, that the widow of the decedent, and his infant daughter, were the heirs of his estate, so inconsistent with the allegation that the land could not be equitably divided between the heirs, and the recital of the record that proof was made of the necessity of such sale, as to destroy them? Or, may the probate court, under section 2221, separate the interests of. the widow and infant child by a sale with the consent of the widow ?
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*524ments, equitable dower must be assigned. — Owen v. Slatter, 26 Ala. 547. The probate court has no jurisdiction to extract from the estate the dower-interest of the widow, except in two instances —1st, where the dower can be assigned by metes and bounds; 2d, where, in a proper case of sale, she signifies in writing her consent that her dower-interest may be sold. — Snodgrass v. Clark, 44 Ala. 198; Rev. Code, §§ 1631, 2229; Barney v. Trowner and Wife, 9 Ala. 901. She is not an heir or devisee, nor is she a tenant in common with the heirs or devisees. The mere allegation of a ground of jurisdiction can not confer and support the jurisdiction of the court, when the facts required tó be stated, and upon which it depends, refute the allegation.
2, Should Mobley be allowed to make this motion ? It is claimed for him that he is in office under another appointment. "We think the objection is to the person. It rests upon the doctrine, that no one should be allowed to take advantage of his own wrong. An unauthorized and void sale supposes some improbity of the vendor. Besides, when the administrator in chief is continued, after the declaration of insolvency, he is not required to give a new bond, or to qualify again in any respect. There is not a new appointment, but a continuation of the old. That an administrator can not avoid a sale of property made by himself, has been repeatedly decided by this court. — Pistole v. Street, 5 Porter, 64; Fambro v. Gantt, 12 Ala. 298, On this ground, the judgment is reversed, and the cause remanded.