heirs of Griffin v. Griffin's ex'r , 3 Ala. 623 ( 1842 )

COLLIER, C. J.

The act of 1822, under which this proceeding was instituted, en'acts that it shall be lawful for an administrator of an intestate, or the executor of a testator who has no power by the will to sell real estate for the -purpose of paying debts, &c. “to file a petition in the County Court of the county in -which letters of administration, or letters testamentary have been gi-anted, setting forth that the personal estate of his intestate or testator (as the case may be) is not sufficient for the payment of the just debts of such intestate or testator,” &c-without a sale of the real estate, setting out and particularly describing in such petition the estate proposed to be sold, and the names of the heirs or devisees of such intestate or testator, and particularly stating which are of age, and which are infants, or femes covert. Aik. Dig. 180-1. This statute is explicit in declaring what must be stated in the petition, and if its terms are to be regarded as imperative, there can be no question, but the petition in the present case is strikingly defective. Jt does not pretend to state which of the heirs are infants, nor what is the condition of all the female heirs. But in the absence of any allegation as to the infancy of any of the heirs, the Court assumes the fact that some of them are infants, without particularizing any, and appoints a guardian ad litem, for all who are in that predicament; and the guardian answers the petition for the infant heirs, without disclosing who they are.

The jurisdiction of the Orphans’ Court in a case like the present, is founded upon a statute, and in order to the regularity of its proceedings, the requirements of the statute must be adhered to. Such was the opinion of this Court in Wiley, et al. v. White & Lesley, adm’rs, 2 Stewart’s Rep. 331, a case, although to a great extent overruled, thus far has never been questioned. Under the principle stated, we think the petition is substantially defective, and that the Orphans’ Court should have sustained the objection made to it, by the heirs who appeared. Whitaker v. Patton, et al. 1 Porter’s Rep. 9.

The Orphan’s Court being authorised to direct the real estate of an intestate or testator, to be sold, either for money or on credit,” (Aik. Dig. 181) it is clearly competent to decree that it be sold for cash, as to a part of the purchase money, and on a credit as to the residue.

h Other questions are raised by the assignment of errors, but their consideration is not deemed necessary, either to a decision of this case, or to enable the parties to adjust the matters in controversy.

Our conclusion is, that the decree of the Orphans’ Court must be reversed, and the cause remanded, that the defendant in error may obtain leave to amend his petition, if he think proper, and take such further steps as are consistent with law.