Dudley v. Rye

ANDERSON, C. J. Should this bill be construed as one to have dower assigned, it is faulty, and was subject to demurrer, as section 3825 of the Code of 1907 confers jurisdiction upon the probate court except in the one instance provided by section 3835. As th'e facts do not bring this case within the influence of said last section, in order to have dower assigned by the chancery couft the bill should present an independent equity. The only other theory upon which it could rest is the sale of the lands for distribution, which cannot be done before the assignment of dower except with the consent of the respondent. Hamby v. Hamby, 165 Ala. 171, 51 South. 732, 138 Am. St. Rep. 23; Boyles v. Wallace, 208 Ala. 213, 93 South. 908. The trial court erred in not sustaining the respondent’s demurrer to the bill of complaint, and the decree is reversed, and one is here rendered sustaining said demurrer. Reversed and rendered. SAYRE, GARDNER, and MILLER, JJ„ concur.