
    James M. Holmes et al. vs. Felix McGee et al.
    Where dower has been set apait to the widow, she has but a life estate in the realty allotted her ; and upon her death, the heirs of the intestate or testator, are entitled to it; therefore, a sale under an order of the probate court, by the administrator of a deceased widow, to whom dower has been allotted, “ of the dower interest of the widow,” passes nothing; and is no bar to a decree for a sale of the same lands, as part of deceased husband’s estate.
    Appeal from the probate court of Yalabusha county; Hon. John J. Choate, presiding judge.
    Alfred McGee and others, some of the heirs at law of Samuel McGee, deceased, a portion of whom are infants, and appeap by James M. Holmes their next friend, allege in their petition that one hundred and sixty-three acres of land were allotted as dower to Elizabeth McGee, the widow of Samuel McGee, in January, 1846; in March, 1846, she died; the land is incapable of division, and Felix McGee and others, named, some of whom are infants, are the other heirs at law of Samuel McGee, for whom the petition prays citation, and that the lands may be sold, &c.
    Citations issued, and the defendants answered that the land had been already sold on the 7th of September, 1846, when most of the complainants were present and assented to it; they refer to the proceedings in relation to that sale as a bar to the present petition.
    On the hearing, the petitioners established the title in Samuel McGee; proved his and his wife’s death; the heirship of the parties, and that the land could not be divided.
    The defendants then read the proceedings at the suit of E. J. Moore, the administrator of Elizabeth McGee, for the sale of “ the dower interest of said widow; ” which commenced in April, 1846, and continued in the regular course, citations being duly issued for the heirs at law of Samuel McGee, and by an order of sale at the July term, 1846, by E. J. Moore, administrator of the land in controversy, “ the same being the dower lands of the late Mrs. Elizabeth McGee,” by a sale on the 7th of September, 1846, to Felix McGee and Andrew J. McGee, two of the defendants in the present suit; and ended with-a confirmation by the probate court of this sale in October, 1846. In all these proceedings the land is described as the “ dower interest of the. widow.”
    The probate court dismissed the petition, and the petitioners appealed.
    
      A. C. Leigh and A. H. Davidson, for appellants,
    Reviewed the facts, and cited 2 Ala. Rep. 236; How. & Hutch. 420, sec. 118.
    „ Fisher, for appellees,
    Cited How. & Hutch. 409, sec. 79; lb. 420, sec. Ill; and argued at length that the petition was properly dismissed, even if the first sale were void.
   Mr. Justice Clayton,

delivered the opinion of the court.

At the January term, 1846, of the probate court of Yalabusha county, dower was assigned to Elizabeth McGee, the widow of Samuel McGee, deceased, in his lands in said county. In a very short time the widow died, and at the July term, 1846, of the court, an order was -made upon the petition of her administrator to sell “the dower interest of the widow.” in said lands, after service of process upon a portion of the parties. The lands were afterwards sold on a credit of twelve months, and the sale confirmed.

At the May term, 1847, of the same court, James M. Holmes and others, being in part the same persons embraced in the proceedings just referred to, filed a petition stating that they with the defendants were the heirs at law of Samuel McGee, deceased, and praying for a sale of the same lands as part of his estate, which had been previously sold by the administrator of the widow, as the dower interest of the widow-” The defendants opposed the order of sale upon the ground that the lands had been sold, and that the title had passed by the previous sale. The court below adopted this conclusion, and dismissed the petition.

The whole proceedings upon the petition of the administrator are founded upon the supposition that the widow had a fee simple title in the lands allotted to her for dower. The order of sale describes the land as the dower interest.” The parties are described as the heirs at law of Elizabeth McGee, deceased. The report of sale calls them the lands, tenements and heredit-aments of Elizabeth McGee, deceased; the order of confirmation uses the same language, and directs that the administrator of •Elizabeth McGee, deceased, execute valid conveyances to the purchaser.

This was all a tissue of errors. After the death of the widow, her dower interest in the lands was at an end. Her administrator, as such, had no concern with them. The interest sold amounted to nothing, and such sale can constitute no bar to a decree for a sale of the lands, as part of the estate of Samuel McGee, deceased.. The court below, therefore, erred in dismissing the petition. The sale of that, which in reality was no title, cannot operate to preclude a sale of a valid and subsisting title.

The order will, therefore, be reversed, and the cause remanded for further proceedings in conformity with this opinion.

Judgment reversed and cause remanded.  