| Ala. | Dec 15, 1881
Under the will of Abel Haggerty, the interests which Mrs. Sarah A. Terrell and Mrs. Susan A. Cunningham took in the lands devised to them severally, were directed “to be held and kept for the sole and separate use and benefit of each of my said daughters respectively during their respective lives, and after their death to go to their nearest of kin by blood.” The complainants in this suit are the children, and all the children, of Mrs. Terrell. She died in 1§65. There can be no question, that under this will the daughters took a life-estate, and only a life-estate, in the lands devised to them by their father, Abel Haggerty; and that, at the death of Mrs. Terrell, her children, complainants in this bill, took title to the share devised to their mother, as remainder-men under the will of testator; and that as to the third part so devised by Abel Haggerty, they did not take by inheritance from their mother. She had no transmissible estate. The children are in by virtue of their own title, as purchasers, and not -as heirs of their mother. To thenea/rest of him, by blood of a first taker, to whom a life-estate is expressly limited, and to take effect at the termination of that life-estate, is not too remote.
Under proceedings instituted and had in the Probate Court, the lands devised to the two daughters, and to Jackson Haggerty, their brother, were partitioned into three parcels in 1855. Before that time, Jackson Haggerty had died ; and Terrell and Cunningham, husbands of his sisters, were executors of his will. By his will, Jackson Haggerty provided for the payment of his debts, and devised and bequeathed the residue of his estate equally to his two sisters, Mrs. Terrell and Mrs. Cunningham. By the terms, proceedings and decree of partition, one share was allotted to Mrs. Terrell, one to Mrs. Cunningham, and the remaining share to Terrell and Cunningham as executors. The shares were unequal in value. The share allotted to the executors of Jackson Haggerty was valued at $7,791.76 ; that to Mi’S. Cunningham, at $7,108.20; and that to Mrs. Terrell, at $4,-930.25. To equalize these values, there would be due to the share which was allotted to Mrs. Terrell, from the share allot
The authority, conferred by statute on the Probate Court, to make partition of lands among tenants in’common, is statutory. Code of 1886, §§ 3497 et seq. It confers no power on that court to make partition without a sale, unless the lands can be divided into shares of equal value. It follows, that the decree of the Probate Court, ordering Mrs. Cunningham and the executors of Jackson Haggerty, or, rather, the shares allotted to them, to be charged with balances in favor of Mrs. Terrell, to equalize their several shares, was, as a decree, without authority. But the parties acquiesced in the partition, took possession under it, and ever afterwards occupied severally, according to the lines of division thus ascertained. This several possession and occupancy continued, without disturbance or complaint, so far as we are informed, until this bill was filed, about nineteen years afterwards. We are not informed there has yet been any Interference with these several possessions.' Now, notwithstanding such partition by commissioners is invalid, for want of authority in the Probate Court to make it; yet, if the parties adopt the division with its terms, as made by the commissioners, and act on it, or make partition and distribution among themselves upon the same terms, they will be bound by it. And, where there has been adoption of, and acquiescence in the partition and distribution, for a sufficient length of time to convince the court there was an acquiescence, such partition or distribution will be upheld, and enforced in its integrity. We need scarcely add, the acquiescence in this case is sufficiently long. Oh these questions, there is substantially no difference between the strong averments of the bill, and the case made in the defense.—Allen v. Raney, 19 Ala. 68" court="Ala." date_filed="1851-01-15" href="https://app.midpage.ai/document/allen-v-raney-6504485?utm_source=webapp" opinion_id="6504485">19 Ala. 68; Teat v. Lee, 8 Por. 507; Jones v. Jemison, 4 Ala. 632" court="Ala." date_filed="1843-01-15" href="https://app.midpage.ai/document/jones-v-jemison-6501872?utm_source=webapp" opinion_id="6501872">4 Ala. 632; Duval v. Chaudron, 10 Ala. 391" court="Ala." date_filed="1846-06-15" href="https://app.midpage.ai/document/duval-v-chaudron-6503045?utm_source=webapp" opinion_id="6503045">10 Ala. 391; Montgomery v. Gordon, 51 Ala. 377" court="Ala." date_filed="1874-06-15" href="https://app.midpage.ai/document/montgomery-v-gordon-6508853?utm_source=webapp" opinion_id="6508853">51 Ala. 377.
By virtue of the partition, effected as shown above, the lands partitioned off to Mrs. Cunningham became debtor to the interest allotted to Mrs. Terrell in the sum of $498.13, aiid the lands apportioned to the estate of Jackson Haggerty, in the sum of $1,181.69 ; one-half of which last named sum, $590.84, would be due from the half-interest in the Jackson Haggerty: land which shall be allotted.to Mrs. Cunningham, in the partition under Jackson Haggerty’s will. This is an original liability, existing against the land as'held and owned by Jackson ITag-. gerty’s estate, because' in the division there was that much
Mrs. Terrell taking only a life-estate in the lands under her father’s will, it follows, that these balances to equalize did not become her absolute'property. She had but a life-estate in them, remainder-to her children, as. her next of kin by blood. If the principal sums had been paid to her, it would not have discharged the liability. She was entitled only to the interest during her life; and at her death, when the title to the lands, vested in her children as remainder-men, their right to demand the principal of the balances to equalize also accrued. They could be treated only as money, and such is the rule when a life-estate, with remainder over, is created in money assets. Mason v. Pate, 34 Ala. 379" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/mason-v-pates-6506514?utm_source=webapp" opinion_id="6506514">34 Ala. 379.
It is objected to the present bill, so far as it seeks, by an enforcement of the vendor’s lien, to collect the said balances to equalize, that it is barred by staleness, and by the statute of limitations. The rights of the present complainants to claim said sums, did not accrue until the death of their mother in 1865. The present bill was -filed in 1874. There is nothing in this objection.—Bizzell v. Mix, supra; Chapman v. Lee, supra. The complainants were entitled to relief as to the said balances to equalize.
The chancellor also erred in the decretal order he rendered on defendant’s petition, filed November 23d, 1877. That petition asked for a reference and report as to the proportion of the Jackson Haggerty land which had been used respectively by Terrell and Cunningham, and the value of the several users, as well as of the rents. It covered the entire time — that during the lives of' Mr. arid Mrs. Terrell, as well as the use and occupation by the remainder-men. The decretal order of reference was general, also covering the whole ground; and under it, without violating its directions, the register stated an account of the use and-occupation, and of the rents, from 1854 down to-the taking of the account. The decretal order should have limited the inquiry to the rents realized by the complainants in this suit, since '.their right to the possession accrued, and since their possession was actually taken. They are not responsible for rents, other than those received by themselves. The JacH son Haggerty lands were devised to the sole and separate use of his sisters;..and-'if Mr. Terrell, father of the complainants,
Reversed and remanded, to be proceeded in according to the principles above laid down.