Noles' Heirs v. Noles' Adm'rs

40 Ala. 576

• Court: Supreme Court of Alabama
• Decided: January 15, 1867
• Status: Published

Opinion

JUDGE, J.

The appeal was taken, in each of these cases, within sis months after the passage of the act of February 21, 1866, entitled “An act to authorize appeals from the probate court.” In Page and Wife v. Moore, decided at the present term, we held that this act was not obnoxious to constitutional objection, in its application to cases in which appeals had been barred by lapse of time under the prior law. The motion to dismiss the appeal in each case, must, therefore, be overruled. — See Acts, 1865-6, p. 64.

2. As to the merits of the cases, submitted by agreement between the parties, together with the motions to dismiss the appeals: Section 1868 of the Code is explicit as to what must be shown in an application to the probate court, for an order to sell -lands for distribution; and its terms are imperative. Amongst other things, it is required that the names of the heirs or devisees, and their places of residence, shall be given. The application in each of the cases before us is, in this respect, strikingly defective. Two of the heirs, it is averred, are minors; and it is stated that their names are unknown. From aught that appears, their names might have been readily ascertained, the application showing their residence to have been in the county in which. the proceeding was. had.

This view being decisive of each of the cases, we deem it unnecessary to consider the sufficiency of either application in other respects, or any other point presented by the assignments of error. We remark, however, in the language of this court, in the case of Cloud and Wife v. Barton, (14 Ala. 349,) “that attention to the statutes, and our decisions in respect to applications by executors and administrators, will enable the probate court to avoid error in form and mode of proceeding at least.”

The decree in each of the cases is reversed, and each cause is remanded.