Greer v. Herren

SIMPSON, J. This was a petition filed in the probate court, by appellee against appellants, asking for a sale of the land described for partition among the heirs of James Vaughan, and their vendees. The answers or pleas, as called and treated in the record, set up the defense, that the property in question belonged to the estate of said James Vaughn, and that according to his will, which is set out in full, said property was to be sold by his executor, and after the adjustment of advances the proceeds Avere to be distributed among the parties in interest, and that therefore the probate court aauis Avitlicut jurisdiction to sell the land for partition in accordance Avitli the prayer of the petition. ' The court sustained demurrers to the said pleas and ordered the sale of the land. By the third item in the Avill the. property in question Avas left to Barah Vaughn, the AvidoAV of James Vaughn, for life, and i:i said item the option Avas given to the son, Frederick A. Vaughn, to take it at a valuation to be fixed by appraisers, and account for it as a part of his distributive share of his father’s estate; and by the tenth item said Frederick A. Vaughn Avas made executor, and as such AA'as directed to sell all of the lands which said James Vaughn died possessed of and undisposed of, and after the sale of the lands, the collection of the other assets, the payment of debts, three disinterested parties, to be selected by the children, Avere to distribute the money “in accordance Avitli the proAisions of this aauII.” The other items of the aauII provide that each devisee is to be charged Avitli the advances AAdtich had been made to him or her. It does not seem that said Frederick A. Vaughn has ever elected to take this property, though there is a conflict in the evidence on that'point. If he did, then, of course, there Avould be nothing to partition, and, if he did not, then it appears as folloAvs: The petition in this case Avas filed August 12, 1905, and it appears that James Vaughn died in 1880, his AvidoAV died [644] ixi 1886, and Fred. A. Vanglm was in possession of the premises, as executor, until his death in July, 1902, and that the respondent, Mrs. Greer, had filed a bill in the chancery court March 3, 1903, seeking to remove the estate of James Vaughn into the chancery court and have distribution there made. Whatever interest any of the parties had in the property in question was under and by virtue of the will of said James Vaughn, and according to said will that interest was only the right to a distributive share of the proceeds of the sale of the property, subject to a deduction to be made on account of the advancements. The probate court was without jurisdiction to- adjust these matters in the statutory proceedings to sell lands for partition among joint owners. — Wimberly v. Wimberly, 38 Ala. 40; Wilkinson v. Stewart, 74 Ala. 198, 204; Marshall v. Marshall, 86 Ala. 383, 389, 5 South. 475; Allen Watts, 98 Ala. 384, 11 South. 646. The decree of the court is reversed, and a decree.will be here rendered dismissing the petition. Reversed and rendered. Weakley, O. J., and Tyson and Anderson, JJ., concur.