
    JOHNSTON, Executor, vs. FORT, Adm’r.
    [APPEAL ERCOI DECREE OE PARTIAL DISTRIBUTION.]
    1. Whenpartial distribution cannot beliad. — A widow, who has dissented from her husband’s will, cannot petition the probate court, after the expiration of eighteen months from the probate of the wlllf for her distributive share of the estate ; nor can her administrator.
    2. Refunding bond necessary in case of partial distribution. — It is error in the probate court to decree partial distribution without requiring the execution of a refunding bond.
    3. Appeal from decree of partial distribution. — An appeal does not lie, in favor of the personal representative, from a decree of partial distribution.
    4. Joinder in erren- does not cure want of jurisdiction. — When the appellate court has no jurisdiction of the appeal, because it is sued out in a case which the statute does not authorize, a joinder in error is not a waiver of the defect.
    Appeal from the Probate Court of Pickens.
    The appellee, as the administrator of Mrs. Winfred J-Stapp, deceased, who was the widow of Jesse Stapp,, deceased, petitioned the probate court to set apart to Mm bis intestate’s distributive share of her husband’s estate; alleging, that the will of said Jesse Stapp was admitted to-probate on the 29th December, 1852, and letters testamentary were on the same day granted to Bobert T.. Johnston; that the widow dissented from the will, within the time allowed by law, and afterwards died; that more-than eighteen months have elapsed since said letters-testamentary were granted, and that the assets in the-hands of the executor are more than sufficient to pay all-the debts and prior claims against the estate. In his-answer to the application, the executor insisted, among-other things, that the probate court had no jurisdiction of the ease made by the petition. The court held,that it had jurisdiction, and appointed commissioners to set apart to the petitioner his intestate’s distributive share of the slaves belonging to the estate. The executor excepted to the ruling and action of the court, and now assigns the same as error.
    
      R. T. JohNStoN, pro se.
    
    S. E. Hale, contra.
    
   STONE, J.

Tbe present was not a case of tbe final settlement of an estate, but a proceeding to obtain a distributive interest while tbe administration was in progress. Tbe right of a legatee or distributee to proceed in tbe probate court, for tbe recovery, after eighteen months, of a legacy or distributive share, is purely statutory. To justify tbe action of tbe court in such cases, tbe petition and proceedings must substantially conform to tbe statute. Gunn v. Howell, 27 Ala. 663. We first propose to inquire, bad tbe court jurisdiction in this case ? If tbe jurisdiction of tbe court cannot be upheld on one of tbe two following sections, tbe whole proceeding is without warrant in tbe law — is coram non judice, and void.

“Section 1772. After tbe expiration of eighteen months from tbe grant of letters testamentary, or of administration with tbe will annexed, if there are more than sufficient assets in tbe bands of such executor or administrator to pay tbe debts of tbe deceased, any legatee may apply to tbe probate court of tbe county in which letters were granted, to compel tbe payment of such legacy.”
“Section 1778. Tbe court may, also, in cases of intestacy, make an order of distribution out of tbe assets of tbe deceased, on tbe application of any person entitled to distribution, after -eighteen months from tbe grant of letters.”

Tbe case made by this petition is not within either of tbe sections above copied. Tbe intestate of tbe petitioner was not a legatee, applying for a legacy. Hence tbe case is not within tbe provisions of section 1772. This estate is not a ease of intestacy, and it is therefore not within tbe provisions of section 1778.

Sections 1776 and 1782 prohibit tbe making of an order for distribution, or tbe payment of a legacy, under tbe sections of tbe Code above copied, unless tbe applicant give a refunding bond. Tbe record in this case does not inform us that any rebinding bond was given, or required. This was an error in the probate court. — Rowland v. Day, 17 Ala. 682; Erwin v. Ferguson, 5 Ala. 167.

Eor tlie errors above pointed out, we would reverse tbis cause, if tbe appeal were properly before us. Such, however, is not the case. There has been no final decree rendered, which can authorize an appeal, either under section 3016 of the Code, or subdivision 5 of section 1888. The only authority for an appeal, from an order such as was made in this case, is subdivision 4 of section 1888. That gives a right of appeal to a “legatee, or person entitled to distribution,” but not to the executor or administrator. — See Devany v. Devany, 25 Ala. 722.

As the statute (Code, § 1888) expressly prohibits the right of appeal by the executor or administrator in cases like the present, the joinder in error by the appellee does not cure the defect. Consent cannot give jurisdiction over subject-matter. — Lee v. Thompson, 28 Ala. 453.

We will not say the administrator is without remedy. It is not for us, in advance, to determine what that remedy is. See, however, Ex parte Tarleton, 2 Ala. 35; Comm’rs’ Court v. Thompson, 18 Ala. 694; Court v. Tarver, 25 Ala. 480; Ex parte Russell, 29 Ala. 717.

The appeal is dismissed, at the costs of the appellant.  