Brown's Heirs v. Powell

PECK, C. J. 1. The first error assigned raises the question as to the propriety of the decision of the court, in striking out the plea in abatement. As, after plea in bar to the action, the defendant can not plead in abatement, so we hold, that if, after the defendant has filed a [157] plea in abatement, and before it is disposed of, he pleads in bar to the action, and under such plea the parties proceed to take depositions and to prepare the case for trial on the merits, he should not be permitted afterwards to insist on his plea in abatement, but should be held to have waived the same. To hold otherwise, would be to suffer the well settled rules and order of pleading to be violated, to the injury and prejudice of the plaintiff, by delaying the trial of the cause on its merits, as well as inducing the plaintiff to incur unnecessary trouble and expense in preparing for a trial that might never take place. For these reasons, we hold, the court committed no error in striking the plea in abatement out of the record. 2. The demurrer to the second plea was properly sustained. This plea, with the amendment, must be considered together; and so considered, to be consistent with itself, it means, if it means any thing, that by excluding the heirs, who had been advanced as stated in the plea, the lands of the deceased could be equitably divided amongst the heirs who had received no advancements. The plea, so considered, was no defense to the application to sell the lands of the deceased for distribution. The heirs alleged to have been advanced were necessary parties defendants to the application of the administrator to sell the lands of the deceased for distribution. — Revised Code, § 2222, On the death of deceased, his lands descended to all the heirs alike, as well to those who had, as to those who had not received advancements, and their title as heirs could only be divested in the probate court by a sale. Section z228 of the Revised Code provides, that the probate court may make an order for the sale of the lands of a deceased party, for distribution, if it is proved they can not be equitably divided amongst the heirs. Therefore, the real issue in this case was, could the lands of the deceased be equitably divided amongst all the heirs ? If they could not, the court committed no error in ordering them to be sold for distribution; consequently, any evidence offered by the contestant that did not tend to prove that the land could be equitably divided amongst all the heirs, was not pertinent to the issue, [158] and for that reason might be rejected as irrelevant. Evidence that some of the heirs had received advancements, in the life-time of the deceased, to the full amount of their distributive shares of the estate, did not tend to prove the issue to be tried by the court, and for that reason it was not an error to reject it. The purpose of the contestant in resisting the application was, we suppose, not only to prevent a sale of the lands, on the ground that some of the heirs had received advancements to the full amount of their interest in the estate, and by excluding them the lands could be equitably divided amongst the heirs who had not received advancements, but also, in some way, to have their title in the said lands divested out of the heirs that had been so advanced. Neither of these things, as we have seen, could be done in the probate court. Whether the contestant can accomplish his purpose in any proceeding in a court of equity, is not necessary, and, perhaps, is not proper, to be decided in this case. The probate courts have only limited, special powers conferred upon them by our statutes, and the powers given to them by section nine of article six of our present constitution. In a proceeding of this sort, they can only order the lands to be sold, or deny the application. This disposes of the second and third errors assigned. 8. Under the fourth error assigned, it is insisted the court erred in permitting the administrator to amend his petition as stated in the bill of exceptions. There was no error in this. It was a matter in the discretion of the court, and if the contestant was thereby embarrassed in his defense, or the condition of the case was so changed as to render new pleas necessary, or other evidence than that he had already taken, he should have asked the court to postpone the further hearing of the case, and to grant him time and leave to file other pleas, and to take further testimony. A The fifth assignment is, that the court erred in ordering a sale of the lands. If the evidence was sufficient to authorize a Sale, then there was no error in making the order for that purpose, if the evidence was credible, we [159] think it was sufficient to prove the necessity of a sale. It was the peculiar province of the court to judge of the credibility of the evidence, as well as its sufficiency. Unless, therefore, the record shows the court was clearly mistaken in this, the decree should not be reversed. As we have discovered no reversible error in the record, the judgment and decree of the probate court is affirmed, at the costs of the appellant.