FORRESTER vs. FORRESTER

FORRESTER vs. FORRESTER. [PETITION IN PROBATE COURT POR ALLOTMENT OP DOWER.] 1. Discontinuance. — Neither the mere neglect of the probate judge, to docket a causo and call it for trial, for more than twelve months after his reception of a certificate of reversal .hy the supreme court of a former decision in the case, nor the mere omission of the party or his counsel to have it docketed and called for trial, operates a discontinuance. 2. Proof of location of lands in coxmty. — In proceedings before the probate court for an assignment of dower, if the petition avers that the lands are situated in the county, and the decree recites that dower is granted in the lauds described in the petition,, this is sufficient to show that the lands are situated in the county. 3. Proof of heirs. — Although the statute requires that the names of the heirs, &c., shall be stated in the petition, (Code, § 1361,) it is not necessary that the decree should show that the facts were proved as alleged. 4. Sight of dmuer not affected by husband’s residence. — The wife’s right to an assignment of dower by the probate court, is not dependent on the residence of her husband in the State at the time of his death, or in the county in which the proceedings are had. Appeal from tbe Probate Court of Tuskaloosa. In tbe matter of tbe petition of Mrs. Sarab Forrester, for an assignment of dower in tbe real estate of ber deceased husband, William Forrester. Tbe petitioner resided in Georgia, and filed ber petition on tbe 1st October, 1859. Tbe probate court dismissed tbe petition, for want of security for costs; but its decree was reversed by this court, on appeal, at its January term, 1860, and tbe cause was remanded. —See tbe ease reported in 35 Ala. 591. Another decree was rendered by the probate court, in Jujy, 1860, granting dower to the petitioner; but its decree was again reversed by this court, on appeal by the administrators, at its June term, 1861, and the cause was again remanded.— See the report in 38 Ala. 119. “At the regular November term, 1862,” as the bill of exceptions in the present record states, “the petitioner asked leave to amend her petition. When said motion was made, E. W. Peck appeared, not as the attorney of the defendants, but as amicus curios, and resisted said- motion, on the ground that the proceeding was discontinued by operation of law; and showed to the court, that the certificate of the clerk of the supreme court, reversing and remanding the former decree in the cause, was received by said probate court, and filed among the papers of the cause, in August, 1861; and it further appeared, that no step, motion, or continuance, had been taken or made in the cause, either by the petitioner, or by her attorneys; nor had she, they, or any other person for her, appeared in court to prosecute said proceeding, from that time until the present; nor had any step or motion whatever been made in said cause; nor had the defendants any notice of said motion; nor was any appearance made by them. Whereupon, said E. W. Peck, as amicus curios, insisted that, by operation of law, said proceeding was discontinued; that the petitioner ought not to be allowed to make said proposed amendments, or to proceed further in the case; and moved the court to reject said motion to amend, and not to permit the petitioner to further proceed in the cause. The Court overruled the motions made by said E. W. Peck, and granted the motion of the petitioner; to which rulings of the court the said Peck excepted.” The petition was accordingly amended by adding the following averments : 1st, that the decedent died in said county of Tuskaloosa, on the 6th February, 1859 ; 2d, that the persons named as heirs-at-law in the original petition, “are the only heirs-at-law of said decedent”; 3d, that the lands described in the petition, and in which dower was claimed, “are situated in said county of Tuskaloosa”; and, 4th, that said lands were in the possession of William For-rester, jr., one of the administrators of the decedent’s estate, A notice was accordingly issued to said William Forrester, jr., which was duly executed and returned; and on the 26th January, 1863, the court rendered the following decree: “This day came the said Sarah Forrester, by her attorneys, and moved the court to proceed with the cause; and it appearing to .the satisfaction of the court, that William Forrester, jr., the tenant in possession of the land in which dower is claimed — to-wit: the W. S. E. the N. E. the E. ¿ of S. W. i Sec. 17, T. 21, B. 9 west; the E -J N. W. £, the W. \ N. E. Sec. 20, T. 21, B. 9 west — has had due notice of this proceeding, by a notice served upon him, and returned to this court; and it further appearing to the court, that the parties in interest, as described in the petition for dower, had been duly notified of the filing of the original petition, and of the day appointed for the hearing thereof, according to law and the order of this court, as is shown by a former order and decree of the court; the court now here proceeded with the case, and to hear the proof, and to determine the right of said petitioner for dower in the lands set forth in said petition and described above. Whereupon, it appeared to the satisfaction of the court, that said Sarah Forrester is the widow of said William Forrester, deceased; that the said decedent was seized in fee, during his marriage with the said Sarah Forrester, of the several parcels of land above described, and to which the petitioner never relinquished her right of dower; that dower in said lands can be fairly assigned by metes and bounds, and that said decedent departed this life intestate. It is therefore ordered, adjudged, and decreed by the court, that the said Sarah Forrester is entitled to have an estate for her life set apart and allotted to her, in one-third of all and singular the lands hereinbefore described. The • administrators appeal from this decree, and make the following assignments of error: “1st, that the proceedings were discontinued, as appears by the record, and for the reasons stated in the bill of exceptions ; 2d, that the recitals in the minute-entry are insufficient to give the court jurisdiction, or to sustain and warrant the order and judgment of tbe court; 3d, tbat tbe judgment is not warranted by tbe proof recited in tbe judgment; and, 4tb, tbat tbe record does not show tbat tbe court bad jurisdiction.” E. W. Peck, for tbe appellants. Moody & Bbown, contra. [MAJORITY — A. J. WALKER, C. J.] A. J. WALKER, C. J. Eor more than a year after tbe certificate of tbe reversal of a former decree in tbis case was received by tbe probate judge, no step whatever was taken in tbe cause, but it appears to bave remained without notice or attention, either by the court or tbe parties. Under tbe later decisions of tbis court, it is well settled, tbat such facts do not constitute a discontinuance. No mere neglect of tbe Court to docket tbe cause and call it for trial, or mere omission of counsel to cause it to be docketed and called for trial, can, under our decisions, operate a discontinuance. But it would be otherwise, if tbe cause bad, by tbe active agency of tbe party or her counsel, been taken from tbe docket.—Ex parte Remson, 31 Ala. 270; Harrell v. State, 26 Ala. 52; Brown and Wife v. Clements, 24 Ala. 354; Drinkard v. State, 20 Ala. 9; Wiswall v. Glidden, 4 Ala. 357. Tbe decree shows tbat tbe land, in which dower was granted, is tbe land described in tbe petition; and tbe land is described in tbe petition as situate in Tuskaloosa county. Therefore, tbe objection tbat tbe land is not shown to be in Tuskaloosa county, is not well taken in point of fact. It is necessary tbat tbe petition for dower should state who are tbe heirs, and designate those who are infants or femes covert.—Code, § 1361; Green v. Green, 7 Porter, 19. But we da not think it is indispensable for it to appear from tbe decree tbat proof was made of tbe correctness of tbat statement. Tbe object of tbe statement of tbe names of tbe heirs is to bave tbe proper parties before tbe corut. Tbe fact tbat certain persons are heirs, does not constitute any element in tbe right of tbe dowress. It is sufficient if tbe decree recites tbe facts upon which tbe petitioner’s fight depends. Tbis is substantially done in tbis case. Tbe widow’s right of dower did not at all depend upon tbe fact, tbat her husband resided in this State, or in the county where the proceedings were had. We therefore cannot perceive that it was at all necessary that the decree should recite any thing upon the subject. Affirmed.