WILKERSON, Admr. vs. VINSON

WILKERSON, Admr. vs. VINSON. 1. The Court of Probate has not jurisdiction to compel an administrator to convey his intestate’s interest in certain lands, which were sold by a firm in which the intestate was a partner, unless the intestate had entered into “bond or obligation to make title thereto.” Errob to the Court of Probate of Bussell. A petition was filed in tbe Probate Court of Bussell by Vinson against Wilkerson, administrator of Daniel McDou-gall, deceased, setting forth that a certain half section of land, situated in Bussell, bad been previously sold to tbe firm of James C. Watson & Co. by Tulse Tobola, and that tbe contract of sale bad been approved by tbe President of tbe United States; that petitioner afterwards purchased these lands from James C. Watson & Co., and that tbe purchase money bad been paid to Daniel McDopgall, who was one of tbe firm or company of James C. Watson & Co.; that after such purchase and payment, McDougall departed this life, without having made to tbe petitioner title to tbe land, or transferred tbe approved contract, as it was alleged was tbe agreement, that a patent might issue to tbe petitioner; that Alex. J. Robinson and James C. Watson were tbe other partners; that James C. Watson was dead, and bis executor, John H. Watson, bad transferred bis interest to tbe petitioner, and that tbe other partner, Alex. J. Robinson, bad also transferred bis interest; and upon this state of facts tbe petitioner prays tbe Probate Court, to grant an order compelling tbe said Wilkerson, administrator of McDougall, to transfer to him tbe approved contract aforesaid, with a request that a patent may issue to tbe petitioner. Tbe petition was demurrred to, and tbe court overruled demurrer; and at tbe bearing, tbe facts of tbe petition being established by proof, tbe Probate Court granted such an order as that prayed for. Tbe overruling tbe demurrer and tbe decree of tbe court are assigned for error. (x. D. Hoopee, for plaintiff in error. Belsee, contra. [MAJORITY — PHELAN, J.] PHELAN, J. The jurisdiction of tbe Probate Court, “to compel an executor or administrator to make titles,” upon petition filed in that court, is limited by tbe words of tbe statute (Clay’s Dig. 157, § 38) to cases were persons owning-lands sold them, and entered into “bond or obligation to make titles thereto,” and died without making titles. In such a case, tbe executor or administrator can be compelled to make titles agreeably to tbe “ bond or obligation given by tbe decedent.” It would be extending tbe jurisdiction thus conferred entirely beyond its proper limits, to bold that under this statute tbe Probate Court is competent to act in such a case as that presented by tbe record. Here there was no “bond or obligation to make titles,” nor even a written agreement to make a transfer of tbe “ approved contract” on tbe part of McDougall, the decedent, to the petitioner. See Griggs v. Woodruff, 14 Ala. 9. Tbe court was without jurisdiction in tbe case; its decree is reversed, and it is not necessary to remand.