
    Tygh v. Dolan.
    
      Petition hy Widow for Allotment of Lands for Homestead.
    
    1. Plea to jurisdiction. — In a case pending in the Probate Court, on the petition of a widow for an allotment of lands in lieu of homestead (Code, § 2544), a plea to the jurisdiction which alleges that a bill has been filed to remove the administration and settlement of the estate into the Chancery Court, and that said court has assumed jurisdiction of the suit, is good and sufficient, although it does not set out the bill in extenso, and does not allege that the matters embraced in the petition were removed as part of the administration.
    2. tiemoval of administration into equity. — The administration and settlement of a decedent’s estate is a single continuous proceeding, and when removed into equity for any purpose, that court must proceed to a final and complete settlement of all matters involved, including the widow’s petition for an allotment of homestead, or other lands in lieu of homestead.
    3. Assignment of dower in equity. — When dower can not be assigned by metes and bounds, a court of equity has exclusive jurisdiction to make an assignment.
    Appeal from tbe Probate Court of Mobile.
    Heard before tbe Hon. PRICE WilliaMS.
    In tbe matter of tbe estate of Tbomas Dolan, deceased, on tbe petition of Mrs. Mary Dolan, widow’and administra-trix, to bave certain lots in Mobile allotted to lrer in lieu of homestead. Said Tbomas Dolan died in tbe city of Mobile, on tbe 15tb September, 1887, intestate, and without children; and letters of administration on bis estate were granted to bis widow on tbe 1st October, 1887. Said intestate was seized and possessed at tbe time of bis death of a bouse and lot in tbe city of Mobile, which was bis homestead, but which was of value more than $2,000; and be also owned three other small houses and lots in tbe city, whose aggregate value was about $2,000, more or less. On tbe 1st April, 1891, Mrs. Dolan filed her petition in tbe Probate Court, alleging that tlie homestead was of greater value than $2,000, and asking that tbe other lots be assigned to her as exempt in lieu of homestead. On the same day commissioners were appointed by the court to make an appraisement and allotment of the property, and they made their report on the 7th April, 1891, appraising the three lots at $1,800, and allotting them to the widow in lieu of homestead. On the 27th -April, 1891, exceptions to the action and report of the commissioners were filed by the heirs at law, who were the brothers and sisters of the intestate; and a day was appointed for the hearing. On the 18th May, 1891, a plea to the jurisdiction of the court was filed by the widow, as follows : “Since the making of said report by said commissioners, this petitioner has filed her bill in the Chancery Court, praying that said court would take jurisdiction of the settlement of her entire administration, including the assignment to her of said lands in lieu of homestead, referred to in said exceptions; and the said heirs of said Thomas Dolan, since the filing of said bill in said Chancery Court, have filed a cross-bill in said cause, in which they pray that said Chancery Court will take jurisdiction of the whole subject-matter, as prayed in said original bill. On the 24th April, 1891, said heirs made in said Chancery Court a motion for a receiver in said cause, and for the removal of said Mary Dolan as administratrix of said estate. Said court thereupon took jurisdiction of said bill and said cross-bill, and is now proceeding to consider and determine all issues involved in said estate, including the issues presented by said exceptions. Petitioner pleads the foregoing facts as a bar to all further proceedings in this lion, court.” The court overruled a demurrer to this plea, and, having postponed a hearing on the exceptions until after the Chancery Court had rendered a decree assuming jurisdiction over the administration of the estate, sustained the plea, and refused to act on the exceptions. Exceptions were reserved to these rulings, and they are here assigned as error.
    W. E. RichaRDSON, and Thos. H. Smith, for appellant.
    HaNNIs Tatlok, contra.
    
   MoCLELLAN, J.

It can not be doubted that the plea to the jurisdiction of the Probate Court was sufficient to present the issue whether the Chancery Court had taken jurisdiction of the administration of Thomas Dolan’s estate. All that is necessary to such a plea, we apprehend, is that it should state the facts that a bill invoking the jurisdiction of tlie Chancery Court has been filed therein, and that court has assumed the exercise of such jurisdiction. Whether the bill to that end is sufficient, is a question which properly arises on the trial of the plea. It can not be necessary that such plea should set out the bill in extenso; and to hold the plea here insufficient would logically lead to such requirement. There was no error in the rulings of the lower court on the motion and demurrers which were addressed to the sufficiency of the plea.

The only other action of the Probate- Court which this record presents for review is its judgment sustaining the plea on the evidence. And the only argument made against the correctness of that action really admits that the Chancery Court had acquired control of the administration generally, and thereby ended the jurisdiction, in a general sense, of the Probate Court. Indeed, the appellants having themselves not only submitted to, but affirmatively invoked the interposition of equity by a cross-bill, were in no position to deny the general jurisdiction of the Chancery Court. But the contention is, that the bill does not specifically pray the Chancery Court to take control of that part of the administration having reference to the setting apart of lands in lieu of homestead to the -widow, and hence that as to that matter the jurisdiction of the Probate Court remained intact. If it were .conceded that the bill made no reference to this particular part of the administration, the conclusion sought to be drawn from that fact can not be sustained. It needs no argument, and no citation of authority, to show that the setting apart of homestead, or lands in lieu of homestead, is as much a part of the administration of an estate, as much in the way of settling the affairs of the decedent, and disposing of property left by him as the law prescribes, as any other act the personal representative and the courts may do in the administration. And when an administration is removed into the Chancery Court for any purpose, or in any part, it is there in whole, and for all purposes. There can be no splitting up of an administration any more than any other cause of action; it is one proceeding throughout, in a sense, and the court having paramount jurisdiction of it must proceed to a final and complete settlement.

But, aside from the consideration that the argument for appellants is addressed solely to the proposition that a part of the administration, that part which they desired the Probate Court to act upon, was not removed into the Chancery Court, and looking to the bill to determine whether that court really bad jurisdiction at tbe time tbe Probate Court so held, tbe conclusion must be that tbe ruling assigned as error was proper. Tbe bill makes a case in respect of tbe widow’s dower right, of wbicli tbe Probate Court bas no jurisdiction. It alleges that dower can not be assigned by metes and bounds, and thus makes a case for exclusive equity jurisdiction.— Wood v. Morgan, 56 Ala. 397.

There is no error in tbe record, and tbe judgment of tbe Probate Court is affirmed.  