Garvin v. Hatcher

Beck, J. I. Should we hold that the widow’s dower could 'have been properly assigned, or her rights of dower protected in the proceedings had in the probate court, as set out in the pleadings in this case, a point that we do not decide, yet the refusal of that court to grant the relief must be presumed to have been warranted by the case made by the parties, and that it was made to appear that she was not entitled to dower, or that her dower had been, could, or ought to be assigned in other lands. In such cases the omission of the court to grant the relief would have heen in accord with the law. And if it be conceded that she was entitled to a portion of the proceeds of the sale of the laud in lieu of dower, her rights thereto so far as the sum to which she was entitled is concerned, if not her right to recover at all, could have been determined only after the sale of the land, and the report of the administrator had been made. Even had her right to the money in lieu of dower been settled' before sale, subsequent orders-of the probate court were necessary to entitle her to receive her portion. It is therefore evident that the pur [689] chasers’ title to the land did not depend upon subsequent proceedings in relation to her rights, and c'ould not be affected by the failure of the probate court to protect her rights to the money, or by erroneous rulings affecting them. II. No question can exist as to the probate court’s jurisdiction, and none are raised, for it appears to have been regularly acquired. The request of the administrator in the petition was for the sale of the land, and this, by the adjudication, was granted. But the order of sale proceeds further,- and rehearses that the administrator be authorized to sell “ the right, title and interest of the heirs ” in and to the land. It is insisted by appellants that the term heirs includes the widow, while the appellee claims that it applies only to the children of deceased who are his heirs at law, the term being used as deseriptio personarurn. We will not pretend to decide the question thus raised; the case may be determined without it. The probate court was empowered to order the sale of the land only in the manner prescribed by law. It could have provided for a sale of a part of the land, if no more was required to be disposed of for the payment of the debts of the estate. It is obvious that the court determined how much land it was necessai’y to sell in order to discharge the debt. The order clearly fixed the whole, and was authorized by the facts before the court in a proceeding in which plaintiff was a party. The direction to the administrator does not limit the quantity to a part, but directs that the interest of the heirs .in all be sold. We are not to understand this order as restricting the adjudication to sell all the land, or sell the interest in it, but are to regard it as a mode of expression used by the court to indicate the sale of all-the land, and all interests in it held by the decedent. That this was the court’s understanding is obvious, for the deed executed by the administrator was approved in due form, and it is a conveyance of all the land. By Rev., § 2386, Code, § 2399, such an instrument, it is declared, passes to the purchaser all the interest of decedent in the real estate conveyed. We conclude that the proceedings of the probate court do not show that the [690] dower interest of the .plaintiff, or rather any part of, or interest in, the land covered by her dower, was reserved from sale, but, on the contrary, that it was all sold. These views applied to the case make the whole record of the court’s adjudications harmonious and in accord with the law. Those pressed by appellant’s counsel, if adopted, would cause it to be regarded as contradictory and illegal. ■ The probate court,' having jurisdiction of the subject-matter before it, and of the parties interested, including plaintiff; who appeared in the case, and the proceeding being regular and in conformity with law, (no objections being urged thereto except those above considered), the sale and deed of the land to defendant’s grantors are not defeated by anything set up in the answer. In pleading the sale and deed, it sets u;p a sufficient defense, and the demurrer ought to have been overruled. ■ We find it unnecessary to consider many arguments' advanced in counsel’s. brief, and authorities cited by them upon questions of notice, estoppel, etc., as the decision of the case, in our opinion, turns upon the points above'discussed. Reversed.