
    COSTLY vs. TARVER.
    [REAL ACTION IN NATURE OF EJECTMENT.]
    1. General charge on evidence. — Where tlie bill of exceptions purports to set out all the evidence, and does not show that any proof was made of the defendant’s possessiou of the premises sued for, a general charge to the jury, instructing them to find for the plaintiff if they believed the evidence, is erroneous.
    2. Sale of decedent's real estate, for division; title to lands allotted as widow’s dower. — Where a decedent’s real estate is sold, under an order of the probate court, for the purpose of making an equitable division among the heirs, and the lands in which the widow’s dower has been allotted are included in tho order and sale, the title to such lands, and the right to tho possession on the death of the widow, vest in the pur■.cliasor; but, if such lands are not included in the order and sale, the title descends to the heirs, with the right to the possession on the ;de'ath of the widow.
    Appeal from the Circuit‘Court of Chambers.
    "Tried before the Hon. Robert Dougherty.
    This action was brought by Hezekiah Tarver and others, ,-as heirs-at-law of Wells Tarver, .deceased, to recover the .possession of a town-lot in LaFayette, together with dam-ages for its detention. The premises in controversy embraced the dwelling-house .of. the decedent, and were allotted to the widow as ,'her dower, by commissioners appointed by the probate court, on the 13th March, 1848 ; and it was shown. tba,t the-widow was dead when the suit was commenced. ' The defendant seems to have derived title under an order of the probate court, made on the 13th March, 1848, authorizing the sale of the decedent’s real estate for the purpose of making an equitable division among the heirs ; a sale by the administrator, pursuant to the order, and a conveyance to the purchaser, who subsequently conveyed to the defendant’s vendor. The bill of exceptions purports to set out all the evidence adduced on the tbial, and states that there was no conflict in the evrdenee. The court charged the jury, that they must find' for the plaintiffs, if they believed the evidence; to -which charge the defendant excepted, and he now assigns the same as error.
    Richards & Faliinee, for appellant;.
    O. D. Hudson, contra.
    
   R. W. WALKER, J.

The bill of‘exceptions purports'to set out all the evidence that was offered on the trial; and the charge of the court-was? that if the jury believed the evidence, they must find for the plaintiffs*. There was no proof, so far as the record discloses, that the defendant was in the possession oí the lafid sued for at the date of-the issuance of the writ; and as, Without-such proof, the plaintiffs were not entitled to a recovery, it follows that; the judgment must be reversed J for this-reason, if for no-other.

We have been furnished with no brief by- the oounse for the appellee; and cannot tell whether any question-was made in the court below, or was intended to be raised here, as to the validity of the sale made by the administrator under the order of the probate court. Under these circumstances, we have not thought it necessary to examine - the proceedings of the probate court, with the view of asoertainiug whether there is any well-founded objection to - the validity of the sale made under its order*

It seems to be assumed by the counsel for the ap- • pellant, that the order of sale, and the deed of the administrator to the purchaser, embraced the land allotted to the widow as her dower. If this be true, and there be no sufficient objection to the validity of the sale, then we concur-in the conclusion, that although the widow during her life had a paramount right to-the possession of the land allotted as her dower, yet, on her death, the purchaser at the administrator’s sale, and not the heirs of the intestate, became entitled to it. The statutory power of an administrator to sell the real estate of his intestate, under an order of the probate court, embraces whatever is descendible to the heirs. — Pettit v. Pettit, 82 Ala. 28S. On the death of the intestate, the law casts the freehold on the heir, subject to the widow’s claim of dower; and on the death of the widow, the heir takes,-as part of the inheritance, what had been assigned for her enjoyment during her "life. 'Consequently, where the entire real estate of "the intestate has been sold by order of the probate court, subject to the widow’s dower, the purchaser at'such sale becomes entitled, on the death of the widow, to 'the possession of the "land assigned as her dower.

In the present case, tíre order of sale is broad enough to cover the entire real estate of the intestate. But the question is, whether the sale, as made by the administrator, was of the entire real estate, subject to the widow’s dower ■interest, or whether the land set apart for her dower, and not not simply her right of dower therein, was excepted from'the operation of the sale. The sale, as reported by the administrator, was of “the real estate-of the said Wells Tarver, deceased, (exce-ptthe loidoiv's doiver,) as described in the petition for sale,” &c.; and if we look alone to this report, as showing the extent of the sale, these words of exception might possibly be construed as simply embracing the widow’s right •of dower, and not the land set apart to her. But, when we • come to examine the deed of the administrator to the pur- ■ chaser at the sale, we find reason to suppose that the sale was not intended to include the land assigned as the widow’s dower. On this subject there is some obscurity, growing out of the confused description of the lands in the various petitions, orders, and deeds, which can doubtless be removed on another trial.

The widow’s petition for dower, and the administrator’s petition for an order of sale, both alleged that the intestate was seized of “Lot No. 17, in letter A, it being the northwest corner of said lot (No. 17), fronting two hundred feet •on Franklin street, running back east, adjoining lot No. 18, two hundred and fifteen feet, situated in the town of Lafay■.ssfcte, and the same-being a part of the north-west quarter of section thirteen, township twenty-two, range twenty-six, being the premises where the said Weils Tarver resided at the time of his death; * * * * * * * also, lot No. 17, in letter A, on Franklin street, front one hundred and eleven feet, running back the length of said lot in the town of Lafayette.” The land allotted to the widow as her dower, is described in the record as “one hundred and six feet in front on Franklin street, and running back sixty-three feet, including the dwelling-house and well, it being a part of lot- No. 17, in the town of Lafayette.” It would seem probable, though, in the absence of any further evidence as to the locality, we cannot be positive as to this, that'the land thus set apart for the widow’s dower, was carved out of the lot first named .in the petition, and there described as the north-west corner of lot No. 17, and was entirely distinct from the other lot'No. 17 named in the petition, and', described as having a “front of one hundred and eleven feet, and running back the length of said lot.” If, in point of fact, this last lot was entirely distinct from-the one out of which the widow’s dower was carved, then-it would’seem from the deed executed-by the administrator, under which the defendant' claims, -that the sale made by the administrator included . only the lot last named in the petition, and did not embrace the land set apart for the widow’s dower j for the deed of the administrator describes the land sold by him as “lot No. 17, in letter A, situate in the town of Lafayette and county aforesaid, said lot fronting one hundred and eleven feet on Franklin street, and running back the length of said lot,” which exactly corresponds with the description of the lot above referred to, as- the one last named in the petition-. On the supposition that this was the only, lot sold by the administrator, and that the dower of the widow was carved out of another and a different lot, it is obvious that, as against the heirs of the intestate, persons claiming under the purchase at the administrator’s sale would have no title, on the death of the widow, to the land allotted as her dower. The uncertainty on this subject can doubtless be removed on another trial. What we have said will suffice to indicate the principle which controls the case.

Judgment reversed, and cause remanded.  