McEvoy v. Leonard

STONE, C. J. On June 3, 1869, Christopher J. Leonard conveyed two lots in the city of Mobile, and the houses upon them, to Patrick Kain, as trustee, for the sole use and benefit of Ellen Leonard, wife of said Christopher J. If the facts averred in the bill be true, and if the law applicable to the averred facts be as contended for, then Christopher J. Leonard died the legal owner of each of said lots; the residence, or homestead lot, never having passed out of him, by reason of the insufficient execution of the deed to convey the homestead; and the other lot, by reason of Christopher J.’s repurchase of it from Forcheimer & Lassabe. If, then, the legal title was in Christopher J. at the time of his death, that title devolved immediately on his heirs at law, he having left no will. Conceding these postulates of law and fact to be true, the heirs of the said Christopher J. succeeded, on his death, to the legal title to said lots as tenants in common, there being, in this State, no joint tenancy as known to the common law. If they held and hold the legal title, then their remedy to recover possession by suit at law is ample, and chancery has no jurisdiction of this feature of the case. The chancellor, however, did not rule on this question, and the appeal does not bring it before us. We decide nothing on this question. One object of the bill is to have a sale of the two lots, and the houses upon them, for division among the eight heirs at law. The averments of the bill, on which this relief was prayed, omit to state, as a reason for the sale, that the lots can not be equitably divided or partitioned among the tenants in common. — Code of 1886, §§ 3253, 3262. Por this omission the defendants demurred, and the chancellor sustained the demurrer. It is argued that, because there are only two city lots, of limited dimensions, to be divided among eight tenants in common, the court will take judicial [460] cognizance that partition is impossible. There would be, at least, some plausibility in this argument, if’ it were averred that these two lots comprised the whole estate which constituted the inheritance. There is no such averment. It is always safest, in such proceedings, to conform to the letter of the statute. But we encounter other difficulties in this phase of the case before us. No personal representative has been appointed for either estate, that of Christopher J., or of Ellen Leonard, and there is no averment as to either estate that it owes no debts. It need scarcely be said that, in this State, all property owned by a decedent at the time of his death, above statutory and constitutional exemptions, must be applied first to the payment of debts. In the case of partition, or sale of land descended, for division among the heirs, it is always safest to have a personal representative appointed. The bill was demurred to for multifariousness, and the chancellor held this demurrer well taken. We agree with the chancellor that the bill is multifarious. We are tempted to inquire, if the validity vel non of Mrs. Leonard’s will should not be first determined, before any other questions sought to be presented are brought before the court? And after the question of the validity of the will is determined, should there not be a personal representative appointed, before further steps are taken? We may be pardoned for inquiring further, whether or not the affiairs of the two estates are not so complicated, that after the contest of the will is determined, and an administrator appointed, should the will, or any of the codicils be set aside, the further administration can not be conducted and concluded with less expense and less of risk in the Chancery Court ? These inquiries are suggested by the questions the bill in its present shape seeks to raise, and are in no sense to be considered as anything more than suggestions, inviting investigation. The true facts may show their entire inapplicability. We entirely concur with the chancellor in all the rulings he made, and direct the reporter to incorporate with his statement of facts the chancellor’s entire opinion. Affirmed.