Forrester v. Forrester , 38 Ala. 119 ( 1861 )

R. W. WARNER, J.

In,the case of Martin's Heirs & Adm'rs v. Martin, (22 Ala. 86,) it was-held that a petition*! for dower -must show who were the heirs-at-law of the deceased. This rule has been incorporated into our statute láw. Section 1361 of the Code provides*, that the petition - for dower “must contain”, among other things, “the-names of the widow and heirs-at-law.”' The petition in-this case fails to state who are the heirs-at-law of the intes- . fate, unless that is done by the averment that “he left him . surviving” certain • children---and grandchildren, whose-• names are given.. We do not think that this* allegation satisfies the statute.. The form of. averment adopted is con- . sistent with the supposition- that-, there are other children . and grandchildren-than those named" in*-the petition, and! who equally with* those namecPare heirs-at-law of the deceased. As this objection is fatal to- the petition,- we need* not inquire whether any of the other grounds of demurrer were well taken-.- They can all be readily obviated in tb© probate court by an amendment - of ,the petition. Neither do we think it -necessary to examine as to the alleged irregularities in the subsequent, proceedings rmihe probate court. All of these can be avoided' in* >the future conduct of the case.

[2.] It may not be amiss, however, to- make a remark as to the matter .-alleged in the special plea interposed by the administrators., It. .is true that',a sale of real estate, under an order of the probate court, does not affect the widow’s right of dower. — Owen v. Slatter, 26 Ala. 547. It is also true, that while the Code provides, that when the land has been aliened -in the life of the husband*, the petition must contain theuiame of the alienee, and bis-residence, if known, (Code, § 1361,) it does not make the same requirement where the land has -been sold under an-order of the probate court, after- the death of the husband. But,, where the land has thus been sold after the husband’s death,-.and has passed into the possession of the purchaser, there can be, to say the least, no impropriety iimalleging thafefact in-' the petition, and giving notice of the application-to the purchaser. Parties will be on the safe -side if they,pursue this-course.

For the error pointed out, the decree is- reversed, and the cause remanded.