Bludworth v. White , 42 Ala. 662 ( 1868 )

BYRD, J.

1. There is no statutory authority upon which the decree of distribution, made on the second Monday in August, 1860, can be sustained. It does not appear from the record that any application for a partial distribution was made by the personal representative, as authorized by section 1771 of the Code then in force, (Eevised Code, § 2097), nor by the parties named in section 1778 of the Code, (Eevised Code, 2105). And the court of probate has no authority in law for turning an application by the administrator for a final settlement of the estate, into a partial distribution thereof, in the absence of any application by the personal representative or the distributees.— Weaver et al. vs. Gardner, at the January term, 1868; Wyatt’s Adm’r vs. Rambo, 29 Ala. 510.

We therefore hold that the decree of 1860 is void, and the court below properly dismissed the application of appellants.

Affirmed.