McNair v. Brown

(After stating the facts.) We are of the opinion that the court erred in striking the objections filed by the defendant to the granting of an order making the children of A. J. Williams parties plaintiff. Even if all of the heirs except one could maintain a suit of this character against that one who was in possession of the property sued for, there is sound reason for holding that such a suit could not be maintained when the one in possession is not only a coheir with the plaintiffs, but is an heir having peculiar rights and interests in the property which are not shared by the other heirs who brought the suit. Those peculiar rights and interests are such that the defendant in this case can not as effectually assert them in the present proceeding as under the law she should have an opportunity of doing. On the face of the written conveyances • as shown by the petition the title to this property is in the widow and she is in possession of it. Should she under these *74circumstances, in case she desires to have a year’s support set apart to her or to claim to have a one-fifth interest in this property, as she might do under the statute if the land belongs to the estate of her husband, be compelled to plead that the land is hers, and at the same time to plead that it is her husband’s and pray that title to a child’s part or a one-fifth interest be decreed to be in her? Or should she be compelled to deny the title of her husband to this, land, and at the same time, if she wishes to have dower assigned her, pray that commissioners be appointed for admeasurement of dower? Or it may be, this question depending upon the estate left by her deceased husband, that she would be entitled to have this land or a part thereof set apart to her as a year’s support; and the amount of the year’s support which she should be allowed and from what property it should be taken, if lands are set apart, can not be determined in this suit, because, if the widow wishes to make application for a-year’s support, she would be entitled to-have appraisers appointed who would set it aside, and to have the ordinary of the county to pass upon the appraisement. While the year’s support allowable to a widow is not, in the usual meaning of the term, a debt of the estate, it is in the nature of an encumbrance on the estate; and the widow should not be forced to elect to take dower, or have her claim of year’s support passed upon by the proper authorities, until it is decided whether this land is a part of the estate of her deceased husband or not;

Judgment reversed.