Jordan v. Jordan

• Decision Date: 17 February 1949
• Docket Number: 7 Div. 983.
• Citation: Jordan v. Jordan, 251 Ala. 620, 38 So.2d 865 (Ala. 1949)
• Parties: JORDAN v. JORDAN et al.
• Court: Alabama Supreme Court

38 So.2d 865

251 Ala. 620

JORDAN v. JORDAN et al.

7 Div. 983.

Supreme Court of Alabama

February 17, 1949

Miller & Pittman and Edw. B. Miller, all of Gadsden, for appellant.

Hood, Inzer, Martin & Suttle, of Gadsden, for appellees.

BROWN Justice.

Solon A. Jordan died intestate August 3, 1947, and on August 8 1947, letters of administration on his estate were granted to Wilmer Lee Jordan. The bill in this case was filed by Jarrell J. Jordan on April 23, 1948. The administration of said estate was still pending in the probate court and the administrator was not made a party to the bill. The only parties defendant are Wilmer Lee Jordan Frank H. Jordan, Andrew J. Jordan and Mary J. Jordan, in their individual rights, the last named being the widow of the decedent.

The bill avers that the complainant and defendants named are the only heirs at law and the widow of said decedent. That the notice to all creditors of the estate of Solon A. Jordan deceased, to file claims against said estate was duly published in the Gadsden Times, a daily newspaper published in Etowah County, Alabama, once a week for three successive weeks, beginning on the 18th of August, 1947. That more than six months have elapsed since that notice was published and there are no pending claims against said estate, and that all debts, including the funeral and expenses of the last illness have been paid. That said decedent died seized and possessed of some 324 lots or parcels of land, situated in several additions laid off and platted in blocks, lots and streets, situated in Etowah County, Alabama.

As to one of the parcels it is alleged that the complainant with the other heirs has a 'one-half interest in a lot 150 ft. wide which runs across the N-1/2 of the NE-1/4 of Section 24, Township 12, Range 6, east of the Huntsville Meridian, being 4-1/2 acres, more or less, situated and lying and being in Etowah County, Ala.' Who owns the other half interest in said lot or parcel of land does not appear from the allegations of the bill.

It is further averred in the bill that all of said property, with the improvements thereon, is jointly owned by the complainant and the other three heirs. That Mary A. Jordan is the surviving widow of Solon A. Jordan, deceased, entitled out of said described lands to homestead exemptions and dower rights, which have not been set apart to her, and that after the said surviving widow's homestead and dower rights and interests have been determined and set apart of her, the plaintiff and the other named defendants, to wit: Wilmer Lee Jordan, Frank H. Jordan and Andrew J. Jordan, each own an undivided one-fourth interest in said real estate described in paragraph four. The bill concludes: 'Plaintiff avers that the lands described in Paragraph Four above, after the said surviving widow's homestead and dower rights and interests have been set apart cannot be equitably divided among the joint owners and tenants-in-common to said property and that it will be to the best interest of the said joint owners and tenants-in-common that their interests in the said lands described in Paragraph Four above, be sold for partition and division.'

The bill prays that the court 'appoint Commissioners to appraise and set apart to Mary J. Jordan, as the surviving widow of Solon A. Jordan, deceased, her homestead and dower rights and interests in and to the lands described in Paragraph Four of this Bill of Complaint,' and 'after said surviving widow, Mary J. Jordan's homestead and dower rights and interests have been carved out and set apart to her, that the remaining lands and real estate described in Paragraph Four of this Bill of Complaint be sold for partition and division among the joint owners and tenants in common, according to the law made and provided in such cases.' That the 'Register be ordered to hold a reference to ascertain a reasonable fee to be paid to the plaintiff's attorneys of record for the services rendered in this cause,' and for any further and different relief that he may be...