Eatman v. Eatman , 83 Ala. 478 ( 1887 )

CLOPTON, J.

Section 2256 of the Code declares: “There is no distinction between the whole and the half blood in the same degree, unless the inheritance came to the intestate by descent, devise, or gift, from or of some one of his ancestors; in which case, all those who are not of the blood of such ancestor are excluded from the inheritance, as against those of the same degree.” The statute abolishes the distinction between the whole and the half blood, as to the descent of estates, except in the single instance, that the inheritance came from an ancestor who was of the blood of one, and not of the other class. In Stallworth v. Stallworth, 29 Ala. 76, it was construed “to limit the qualified preference of the whole over the half blood, to estates which the intestate inherited, as contradistinguished from those otherwise acquired by him.” The intestate, who was the wife of two husbands, bore children of each marriage. The petition for the sale of the land shows that it was allotted to the intestate after the death of her last husband, under the statutes, as a homestead exempt from sale for his debts, and which she is permitted to retain until it is ascertained whether his estate is solvent or insolvent, and vested in her absolutely, his estate having been reported and declared insolvent. — Code, §§ 2821, 2827. She acquired the estate, not by inheritance from an ancestor, but by statutory right, the statute carving it out of the estate of her husband, and devolving the title on her. The children of both marriages stand in the same degree of relationship, and no distinction can be made between them. Under the statute of descents, all her children are entitled to share equally in the distribution of the proceeds of the land so acquired.

2. The petition is sufficient to give the court jurisdiction. It does not make a case of adverse titles, which the Probate Court is without jurisdiction to adjudicate; but sets forth the facts, on which the court may determine who are the heirs entitled. The judge of probate, having ascertained that the land can not be fairly and equitably, divided between the heirs, whether consisting of only one or both classes of children, without a sale thereof, and the proof sustaining his conclusion, there is no error in the decree of sale.

3. The confirmation of the sale rests in the sound discretion of the court, not to be exercised arbitrarily, but according to equitable rules. It is true there is testimony to show that the land brought its full value, and there is also testimony tending to show that the price for which it was sold is greatly disproportionate to its value. In this state of the evidence, and considering the opportunities of the witnesses to form a correct judgment, we can not say that the court erred in refusing to confirm the sale.

Affirmed, on both appeals.