Bozeman v. Bozeman

• Decision Date: 14 July 1887
• Citation: 82 Ala. 389,2 So. 732
• Court: Alabama Supreme Court
• Parties: BOZEMAN AND OTHERS v. BOZEMAN, ADM'R.

2 So. 732

82 Ala. 389

BOZEMAN AND OTHERS v. BOZEMAN, ADM'R.

Supreme Court of Alabama

July 14, 1887

Appeal from probate court, Crenshaw county.

Application to sell lands of decedent for division among heirs.

T. H Bozeman filed his petition in the probate court of Crenshaw county, January 15, 1886, setting forth that Josiah Bozeman Sr., had died in October, 1841, and seeking to be appointed administrator of his said estate, which was granted as provided by law. Afterwards the administrator filed a petition in said court to sell the real estate belonging to said estate, as provided by statute, because the same could not be equitably divided among the owners thereof. Said petition set forth, among the heirs of said estate, the following: "Heirs of Josiah Bozeman, (Jr.,) viz.: Agnes age 14 years; James, age 12 years; Josey, age 8 years Alabama, age 6 years; Sarah, age 2 years,-all of sound mind, and reside in Crenshaw county, Alabama; Rebecca, Martha, and Jane Garrett, all of sound mind." Upon the hearing of said petition, on November 8, 1886, it was granted; and the administrator was "ordered to sell the lands described in said petition [describing them] for one-half cash, and the balance on 12 months' time, on the premises, at public outcry, to the highest bidder therefor, after advertising as required by law." The facts of the case further appear in the opinion of the court. The actions of the court noted above, and others, are assigned as error.

Gamble & Richardson, for appellants.

Parks & Son, contra.

SOMERVILLE J.

We find may errors in this record for which the judgment of the probate court, ordering the sale of the lands for distribution among the heirs of the decedent, must necessarily be reversed.

1. In the first place, the petition fails to state the places of residence of three of the heirs of the decedent's estate, Rebecca, Martha, and Jane Garrett, or to state whether they were under 21 years of age, or were married women. This was required by section 2450 of the present Code, (1876,) and a failure to conform to these requirements is a reversible error.

2. The order of sale, made by the probate judge, fails to specify the place of sale, and no power is vested by law in the administrator to select such place. This was required by section 2462 of the Code, (1876,) and the defect pointed out is also a reversible error. Brown v. Brown, 41 Ala. 215.

3. There are other assignments of errors in the record, but we must consider only one of these, which seems likely to prove fatal to the application upon another trial. It is our opinion that, where one of several heirs has been in the possession of a decedent's lands or other property, for 20 years or more, holding adversely, notoriously, and exclusively, by independent claim of right in himself, no application can be made for an administrator or executor for the sale of such lands for distribution, under the provisions of section 2450 et seq. of the Code...