
    Jesse Hart, et uxor, vs. Joseph Dunbar, Executor of John Foster, deceased.
    Where an executor, having authority by the will to sell the real and personal estate, sold the realty ; and the widow united in the deed for a nominal consideration, without intending to give up her right to an equivalent out of the purchase-money for her dower in the realty so sold; and the widow applied by petition to the probate court for her one-third of the proceeds of the sale, and the probate court dismissed the petition for want of jurisdiction; Held, that if, by the terms of the will and the action under it, the real estate was reduced to personalty, the court had jurisdiction, and should entertain the petition.
    Where, by the terms of the will, the whole estate, real and personal, of the testator, is left subject to sale at the discretion of his executor, if in his opinion it would be for the interest of the estate to do so, is the real estate thereby converted into personalty ? Query ?
    
    If a widow, voluntarily and without fraud, but for a nominal consideration, aliene her right of dower in realty, it seems, the probate court will have no jurisdiction of a petition by the widow for compensation out of the personalty of her husband for her interest in the realty thus released ; she must rely for compensation on her contract, express or implied, under which she parted with her dower, and must seek her relief in a court having jurisdiction of contracts.
    On appeal, from the prohate court of Adams county.
    Jesse Hart, and Mary M. Hart, his wife, filed their petition in the probate court of Adams county, in which they stated that John Foster died in the year 1832, having previously published his last will and testament, by which he appointed Joseph Dunbar the executor thereof, who qualified in the year 1835. That by the powers vested in him by this will the executor sold, on the first of January, 1834, all the real and personal estate of Foster, for the sum of one hundred and sixteen thousand dollars, to Joseph Neibert.
    That notwithstanding the powers vested in Dunbar by the will, it was by Dunbar and Neibert thought prudent to obtain the widow’s right of dower in the land; that the petitioner, Mary M. Hart, then the widow of Foster, but since intermarried with Jesse Hart, being content with the sale, and willing to receive her dower out of the proceeds of this sale, readily consented to, and did relinquish her dower in the realty. The petition proceeds further to state how much of the purchase money of the property of Foster, Dunbar had sold and accounted for, and claims one-ninth of the proceeds of the personalty absolutely, Foster having left eight children; and one third of the proceeds of the realty for life. The petition further proceeds to detail the value of the realty, and the amount for which it was, or should be estimated out of the purchase money. Those portions of the petition are omitted, as they did not enter into the consideration of the court.
    The only item of the will which it is deemed requisite to notice, is the one conferring power upon the executor to sell; that is in these words :
    “It is my will and desire that my said executors, as soon as my debts are paid, shall appropriate so much of the proceeds of my estate as in their judgment shall be necessary for the education of my children, and if practicable I do not wish my plantation and lands disposed of until my youngest child arrives at the age of twenty-one years, or marries; but if, in the opinion of my executors it would be to the interest of my family to sell or dispose of the whole, or any part of my estate, sooner, I hereby authorize and empower them to use their discretion, and vest in them or the survivors of them full power to sell and convey such part of ray estate as they may deem necessary and proper.”
    To this petition the defendant, Dunbar, answered in part, and demurred in part. To that part which related to a division of the personalty he answered, but demurred to the part which applied for a division of the realty.
    The answer not entering into the consideration of the court, is not noticed.
    The probate judge sustained the demurrer to the petition so> far as it embraced the realty, and dismissed it to that extent, from which opinion an appeal was prayed and prosecuted.
    
      
      Montgomery and Boyd, for Hart and wife.
    The only .question involved in this case is whether the probate court had jurisdiction of that portion of petitioners’ demand, relating to the real estate.
    As to the question of jurisdiction. This being a claim to a portion of an estate under a will, must be included in the term “matters testamentary,” and come within the jurisdiction of the probate court. 2 How. R. 856 ; 3 lb. 255.
    But it may be insisted that when the widow relinquished her dower in the real estate of her husband, she ceased to have any right to the real estate, or the proceeds of the sale thereof, over which a court of probate could have jurisdiction. That she was thereby placed in the same condition with other vendors, and must resort to a different tribunal to enforce a specific execution of the contract, or to recover damages for the non-performance. To this we answer : The will under which defendant acted, gave him the power to sell the real estate, and having never been renounced by the widow it was obligatory on her, and consequently destroyed, or took away her common law right of dower, or at least clothed the executor with the power of taking it away, by a sale of the real estate under the will. And she can now only claim such interest as is granted by the will. Her deed does not purport to be a sale of her interest in the real estate, but a confirmation of the title given by the executor. It was only a more solemn acquiescence in the provisions of the will.
    The provisions of our statute which confer jurisdiction in such case, are free from all ambiguity.- The distributer of an intestate’s estate may petition the probate court for a rule on the administrator to make distribution, &c. H. &. H. 406, s. 70.
    And any person entitled to a legacy or any estate by will shall be entitled to the benefit of the above section. Ib. s. 71.
    The court have, at this term, fully sustained the jurisdiction of the probate court in all matters testamentary. Hambulin v. Terry¡.7 How. R. 145.
    It may be contended that the will did not authorize a sale of the real estate by the executor, because it was only attested by two witnesses. But we contend that although the executor had not conclusive authority, yet if he undertook to exercise the trust under defective authority, he cannot refuse to account to a cestui que trust, who is interested in contesting his power, but submits to his exercise of it. Until the will is contested, or in other words until the sale of the real estate made by Dunbar is defeated by those interested in it, who are the heirs and widow of the deceased, Dunbar has no right to presume his acts will be contested. The heirs and widow have a right to ratify the sale, although made under a doubtful or defeptive power, and the widow who is now claiming her share of the proceeds of the sale, has ratified the act, and when ratified they are respectively entitled to call for their shares. The sale was made by Dunbar as executor, and confirmed by the widow as of that character, and that under a will which has been probated according to law, although it should not have been ; and until the decree of the probate court is reversed it remains the established will of Foster, and the executor is bound to perform all the duties therein required of him.
    As to the construction of the wills, it may be contended that fhé estate was in abeyance, or vested in the executor, until final settlement of the estate, and was then to be divided equally between the widow and children then living ; but we believe the contrary doctrine has been established at the present term of this court, and previously, and that the estate should be divided according to the circumstances existing at the death of the testator. Wade v. Grimes, 7 How. R. 432. 3 How. R. 307.
    Again the will prescribes, that the property shall be divided agreeably to the law of the country. It is clear if Dunbar had never executed the power of sale vested in him, the heirs would have taken the estate by descent, and not purchase •, but as their descent has been cut off by the execution of a power, they must take as purchasers under the will. What shares do they take in this fund 1 Unquestionably sqch share of the proceeds, of the sale, as they were entitled to in the thing sold. When an executor &c. procures an order of the court to sell real estate under the statute, he is required to give bond to pay the proceeds to those entitled to the land, in the same proportions they were interested in the land. How. & Hutch. 419, sec. 114. This statute, in the absence of all other rules, would furnish a fair.guide to the court, in forming its decision. See Dean v. Dean, 7 Monr. 306.
    With regard to the parties, we know of no rule requiring that the heirs shall be made parties. No relief can be granted against them ; and the statute which regulates this proceeding, is entirely silent as to them. Their interest cannot be affected.
    
      Quitman and McMurran, for appellee.
    The demurrer rests upon two grounds : The want of jurisdiction of the probate court over the subject-matter of the petition demurred to, to take cognizance or to grant any relief; and the want of the necessary parties to the petition.
    As the last-mentioned ground is the least important in this case, we will briefly refer to it, and dispose of it first. The rule, so familiar to every one, in chancery proceedings, applies with full force in this case — That all parties interested in the controversy must be made parties, complainants or defendants. As the widow of the deceased John Foster is applying to his executor for an account, and payment of interest, at ten per cent., on the third of the purchase money of the lands of the said Foster, sold by the executor, surely his heirs, his children, as appears by his will made an exhibit to the petition, are most deeply interested in the result. The widow claims that the executor shall be decreed to pay her ten per cent, on the third of the money during her life ; and she may live fifty years yet. The petitioners, we cannot suppose, intend or ask the executor to pay this interest annually, unless he has this one-third of the purchase money, and can retain it from the heirs of Foster duribg her life. The petitioners cannot 'pretend that the executor, Dunbar, shall pay such an interest, if he has not and cannot retain and use the money, as long as the widow shall live. And are not the heirs, those interested in this fund itself, this reversion, or whatever it may be called, directly interested ? It is theirs; and in the question, when they are to enjoy it, how it shall remain during the lifetime of the widow, they are at least as much concerned as the petitioners can be. And to make a decree, without their being parties and bound by the decree, would leave the executor open to any proceeding they might institute hereafter, touching this fund, and to any decision that might be made, regardless of the present proceeding, or any decree or order based upon it. This point is, to our minds, so plain and palpable, that we will add nothing further in regard, to it. 3 Munf. R. 29.
    2. We will proceed to the discussion of the other ground taken in the demurrer, a much more important one to Mr. Dunbar, and which we conceive to be most decisive against the appellants, Hart and wife — That the probate court has no cognizance of the subject-matter covered by the demurrer, and can grant them no relief on the prayer of the petition.
    The first branch of this second question, arising upon the demurrer, regards the jurisdiction of the probate court. We recollect but one statute treating of the allotment of dower, and that will be found in the Revised Code, p. 230, &c. This provides alone for the allotment of dower in kind ; for the setting off, by metes and bounds, of the one-third part of the lands, of which the husband died seized, to the widow, during her life, for her dower. This is effected through the probate court of the county where the lands lie. But surely none will seriously contend, that if the dower interest in the lands be changed into the proportion of the money for which the lands sell, that the statute cited confers on the probate court any jurisdiction to adjust and decree the amount the widow may be entitled to, in lieu of dower; or to enforce any contract that she and an executor or administrator and the purchaser of the land may have entered into upon the subject 1 As well might it be contended that the next statute in the Revised Code, upon the subject of the partition of lands, authorizing a judge or the chancellor to appoint commissioners, and have partition made between joint tenants, coparceners, and tenants in common, would anthorize and empower such judge or chancellor to enforce any contract that might be made by the parties for the sale of lands held in coparceny, joint tenancy, or in common, and adjudge what portion of the proceeds should be paid, in case they had agreed thRt one should make sale for the benefit of all. No, the judge or chancellor would not hear of such an application, but would leave the parties to their redress through the ordinary tribunals of the country, as in other cases. So, in the present case; if Hart and wife have any claims against Mr. Dunbar, by reason of her dower rights in the land, when sold to Neibert, they must resort to the usual tribunals for the enforcement of contracts and the redress of grievances. What is there,, in the case presented by the demurrer, to draw it into the probate court 1 Is there any other statute than, the one which we have cited, that has any bearing on the question, that can in any way confer jurisdiction upon the probate court, in such a case as the present 7 All the ingenuity of the opposite counsel cannot, we think, torture the statute establishing the probate court, into such a construction as to warrant the decision, ttíat that court can exercise jurisdiction. If it can, why it may in any case, in which an executor or guardian may make a contract. If an executor were to purchase a widow’s dower right in lands, or agree to pay her such a sum in lieu of it, or to purchase out the interest of an heir in lands, and a controversy arose between them in the one case or the other, she, or he, could resort to the probate court, cite the executor, and compel him to execute the contract. For on the present occasion it is no more nor less than an attempt to enforce the understanding between Mr. Dunbar, Mr. Neibert, and the widow, then Mrs. Foster, in regard to her dower. It was such an understanding as he, Dunbar, made upon his own personal responsibility ; and if he had agreed to the arrangement with the widow, even under a provision of the will, that agreement could not be taken cognizance of by a probate court.
    But again. Admitting the will to be fully attested, the only provision that can be referred to by the opposite counsel, as bearing upon this discussion, is that the testator wills and desires his estate to be divided and go to his wife and children, or the survivors of them, or their heirs, agreeably to the laws of the country. And this brings us directly to the other branch of the second question we have been discussing; and that is as to the relief sought by the petition. The petitioners, pray that they may be allowed, and that the executor, Dunbar, may be decreed to pay them an interest of ten per cent, per annum, during the life of Mrs. Hart, on one third of the purchase-money agreed to be paid by Neibert. Now, is it gravely contended that this would be agreeably to the laws of the country? If so, what is to become of our client, Dunbar ? Between the widow and the children of John Foster he would be in a sad condition, indeed. The heirs, as they arrive at age, are entitled to their portions of the estate, whether they claim under the will, or aside from it, and their portions include the title to and interest in the widow’s portion of the estate, the possession or use of it alone being hers during her life. Now, is it to be seriously urged that Dunbar, as executor, is, by the will, or by qny law, to retain this money, this third of the purchase-money, and use it or loan it out at ten per cent, and pay the widow thereon at that rate during her life ? and that the heirs, distributees, or legatees, must wait until she dies before they can control or do anything with the principal, or make any disposition of it, subject to the widow’s claim for the interest? Certainly, the heirs could dispose at once of their reversionary interest in the dower lands, subject to the widow’s life estate. But, according to the argument of the opposite counsel, and their petition, the heirs would not be able to touch, control, or dispose of this interest of theirs, until after the widow’s death. Thus their rights would be essentially changed, according to the argument, by the agreement between Dunbar, Neibert and the widow, without any privity or consent of these heirs. Can it be pretended that this would be binding on the heirs? Surely not. They, or their guardian- during minority, pould compel the executor to account to them for their share of the estate, in such a way that they or their guardians could and would have the control and disposition of the same, although it might be subject to the widow’s dower during her life. What law, what authority from the books, can be produced to sanction such a course ? Where can a decision be found in a court of law, of chancery, or of probates, sustaining the position that,upon a sale nf real estate by an executor or administrator, the widow concurring, he is to account to her for ten per cent, during her life, upon one third of the proceeds of the sale 1 This would not be administering an estate according to law, and then closing it, but it would be .holding open an administration during the widow’s lifetime, and closing it upon her death. What an anomalous administration ? But we insist the distiibutees, heirs or legatees, as the case may be, are not thus bound to wait, relying on the honesty and solvency of an executor for the result. That it is no part of the duty of an executor or administrator to do so; and that the probate court can exercise no such powers as to decree in any such manner as prayed for in the petition. ■
    No. If the widow be entitled to an interest in or share of the proceeds of the sale of the lands sold to Niebert, it must be a certain portion of the purchase-money, which she must take absolutely. That portion must be fixed according to the relative value of her life estate, and the remainder. If the lands sold say, at $60,000, the third of that would be $20,000, and her life estate would probably be estimated at the third of that third, thus making her dower interest equivalent to $6,666 66, which she would take absolutely in lieu of her dower interest. This is the only sensible and reasonable rule to be found in the books, and the one adopted by courts of chancery in all such cases as the present, and all cases bearing the least analogy to it. And this too, or rather upon this rule, the widow and executor acted in regard to her dower in this very case, and in pursuance of which she has received fully, as much, and in our humble opinion, more than she was entitled to, as will-most fully and satisfactorily appear by the answer of Mr. Dunbar to the residue of the petition, not demurred to.
    
      
      Montgomery and Boyd, for appellants.
    In ordinary applications for allotment of dower, the statute requires no other party than the executor; or in case the dowress is executrix, an advertisement. No practice has ever grown up which makes the heirs necessary parties to such proceeding. They are certainly as deeply interested in the allotment of dower in the land as they are in setting apart a portion of the proceeds of the sale made by the executor under the will.
    It is true they will be entitled to the whole of the proceeds of the sale after the death of the widow, but they have no present interest in that portion of the proceeds.
    Our statute on the subject of the distribution of the estates of decedents, and payment of legacies by administrators and executors, does not contemplate the action of any court whatever except the probate court.
    It is made the duty of the executor and administrator to make distribution, &c., and the statutes before referred to make provision only for proceeding against them. The moment the heirs of legatees are made parties, unless all are minors, the court has no jurisdiction, except in those cases specially provided for by statute; such as partition of land among coparceners, joint tenants, &c., in which the probate court is placed in the attitude of special commissioner instead of a judicial tribunal.
    The jurisdiction of the court only extends to matters testamentary, and orphan’s business, and the allotment of dower.
    In matters testamentary, the executor or administrator is the only necessary party, for he alone can -be affected by a decree or order of the probate court. And if an order or decree is made, affecting the rights of third persons, it would be a mere nullity, notwithstanding the person might be party to the proceedings. For instance, there can be no question of the jurisdiction of the court to make partition among coparceners. Suppose, on filing a petition for partition, a party claiming the land adversely, was made one of the defendants, and, as he very properly might, should treat the whole matter as a farce, and permit a decree pro confesso, would any lawyer pretend his rights were affected by the order of distribution? Yet he is within the chancery rule, which requires all persons interested in the subject-matter of the suit to be made parties.
    In what manner will the rights of the children named in the .will, be affected by the decree which is sought to be made in this case? It probably will be said they have a present as well as future interest in the funds produced by the sale of the dower land. If that be true, in what way will that interest be affected ? Have they not the same right to control and dispose of their interest in the funds in the hands of the executor, which they would have to dispose of land allotted as dower? The fund remains in the hands of the executor, as the property of the children charged with usufruct in favor of the dowress. They can sell their reversion in either. It is no argument to say the fund is rendered unsafe and uncertain in value, by being reduced to money, and remaining in the hands of the executor, who may be required to hold it at interest for a great many years, subject to this claim, who may, in the mean time,- become insolvent. Those considerations were very proper for tfye testator, when he made his will, but the court cannot interpose for the protection of the legatees any guards which have been intentionally removed by the testator. It was evidently the intention of the testator that his estate should remain as he left it, and be managed, as he might have done, by his executor, until the time for division arrived ; but he also clothed his executor with power to convert the estate into money, and required him to hold that money, subject to the same claims on the part of his widow and children, which they would have had in the property. This provision, by implication, confers on the executor all the powers to control and manage these funds, as a trustee, for the benefit of those to whom it belongs, until the time arrives for paying it over. It was clearly competent for the testator to repose such confidence in, and confer such powers on, his executor; and the courts cannot revoke or disregard these powers, although it may be certain they were unfortunately or improperly conferred. Under that provision of the will, which confers on the executor the power to manage the estate until division, it is clearly his duty to lend the money received on the sale of the property, for the best interest he can lawfully contract for, which, at the time the petition was filed, was ten per cent. But if he should show that, in the exercise of reasonable diligence, he had not been able to lend at so high a rate of interest, he would only be accountable/or such rate of interest as he was able to procure; and the demand for ten per cent, interest cannot be considered as embraced in the demurrer. The only question is, is the widow entitled to interest on the funds produced by the sale of the land by the executor? If he received interest on it, or used it for his own profit, or wasted it, or gave it to those who were not entitled to it, he is bound to account for interest to those who are entitled to the use of the principal; and the rate of interest maybe settled by the circumstances.
    It is contended the widow is not entitled to interest, because it would be locking up the funds during her life; but that argument is not more correct in this case, than it would be in every case of allotment of dower. And there is no rule in this class of cases like that relating to the value of annuities. The most apposite cases to illustrate this, are those cases in which the nature of the property precludes the assignment of dower by metes and bounds, a mill or a single house and lot in a city, &c.; in which cases it is clearly settled that the widow may be endowed of the income, as the third toll dish, or one-third of the annual rent. In this case the widow is not entitled to oné-third of the money, and as it cannot be used without being consumed, she cannot have it set'(apart for her’ use during life, the original fund to be returned ;' therefore she is only entitled to have one third of the annual income.
    It has been gravely contended ' that the probate court has no jurisdiction, because the sale by Dunbar, relinquishment of title by Mrs. Foster, and purchase by Neibert, was a contract. Now there is no averment in the petition that there was any contract with Mrs. Foster, concerning her interest, but it is distinctly and positively averred that Dunbar sold the land, as executor under the powers conferred by the will, and that Mrs. Foster confirmed the sale, as far as she had any interest, to satisfy the purchaser and remove his fears; and she claims only the property secured to her by the will. If there was any contract, it does not appear by the petition and demurrer, and should have been set up in the answer. It would be very convenient for Mr. Dunbar to defeat any claim Mrs. Foster might set up on contract by denying the agreement. And there can be no implied agreement for the sale of an interest in land.
    The further objection urged by Mr. Dunbar, that he had no authority to sell, and that the heirs were seeking to set aside the sale, is still more absurd and untenable. It appears he did sell as executor, and has received all or nearly all the price for which he sold. Now, admitting one of the heirs shall succeed in defeating the operation of the sale, and recover his share of the land, does that make the sale void as to those who have confirmed or offer to confirm the sale, and take their share of the proceeds of the sale ? Or can executor object to pay one of the heirs his share of such proceeds, unless'all will confirm his act? Surely it does not lie in his mouth to say he will not permit the sale to stand. He cannot repudiate the contract; and if Neibert is content, and has paid him the money, he has no right to retain it because objections may be raised to the sale by some of those interested. Neibert may be content to hold the shares of those who have, and may confirm the sale and take a compensation for the shares of those who refuse ; and if so disposed, he has a perfect right to insist on his contract. A rescisión of the contract would not be granted under any circumstances, unless the parties could be placed in statu quo.
    
    From these views, we think the court below erred in dismissing the petition. If these were not proper parties, the proper order would have been that new parties be made, and if such order were neglected, the case should have been dismissed for want of prosecution. And on the merits of the case and relief sought, we conceive it is clear the court had jurisdiction, and the case made by the petition entitled the petitioners to the relief sought.
    
      The aid of the answer has been improperly invoked in the argument of the demurrer. The demurrer must stand or fall on its own merits, and the answer cannot help it.
   Mr. Justice Clayton,

delivered the opinion of the court.

By the will of John Foster deceased, his whole estate was left subject to sale at the discretion of his executor, under certain circumstances, and after the payment of his debts and some small special legacies, the balance was directed to be divided and to go to his wife and children, or the survivors of them, agreeably to the laws of the country. The executor sold the whole real and personal estate together, for the sum of $116,000, and the widow of Foster executed a deed, by which for a nominal consideration, she conveyed all her rights to the purchaser. This was done to show her concurrence in the sale. She afterwards married Hart, and this petition was filed in the probate court of Adams county, to compel a final settlement of his account by the executor, to obtain her portion of the personal estate, and to obtain interest on one-third of the amount for which the real estate sold, as a commutation for her dower therein. The executor filed an answer and plea to so much ol the petition as related to personalty; and a demurrer to so much as related to the realty, on the ground that the court had no jurisdiction, and that the children and legatees of Foster should have been parties. The court sustained the demurrer, and dismissed the petition so far as it related to the proceeds of the real estate; from which order the cause comes by appeal to this court. No other points than those raised by the demurrer, are before this court.

It is not always easy to define the boundaries of jurisdiction between the different courts, and cases will sometimes arise, which make it doubtful whether they fall more properly withir. the cognizance of one or another. In one point of view, this case partakes of that character. A court of probate unquestionably has jurisdiction in matters of dower, and we have heretofore decided that in such cases, the only inquiry is, whethei there was seisin in the husband, and whether the wife has parted, with her right. If the husband were seized, and she has not parted with her right, then the court must grant her petition. Caruthers v. Wilson, 1 S. & M. 527. In this instance she has alienated her right of dower, to give effect, as she alleges, to the will of her husband. But that intention does not remove the difficulty. If she parted with her right voluntarily and without fraud upon her, her claim to compensation must rest upon contract, express or implied. Would the court of probate then have jurisdiction over the subject-matter, that is, over the contract, and have power to enforce it? It occurs to us very strongly, that it would not; and that if this were a case of intestacy, in which the widow joined in making a conveyance, she could not resort to that court for relief. Her claim would then rest upon contract, express or implied, with the administrator, and she must resort to some court which has jurisdiction of contracts. In other words, it would be a controversy not in regard to the administration of an estate, nor in regard to the estate itself, but in reference to rights which had grown out of the estate, in consequence of the dealings of the parties. Upon the principles which were argued, we should feel much difficulty in arriving at the conclusion, that the court had jurisdiction in s.uch a state of facts. In this case, however, there is a will, and another view is presented. By the will, the whole estate might be sold at the discretion of the executor; and it was in fact sold, with the concurrence of the widow, and, with a conveyance of all her title for the Satisfaction of the purchaser. This question then arises, whether, by the terms of the will and the action under it, the whole estate was not converted into personalty. Whether that character was not stamped upon it, and whether all does not pass by the will as personalty. In Pratt v. Taliaferro, 3 Leigh, 419. 1 Lomax on Ex. 220.

We shall not decide this point now, because it was not presented in the argument, nor is it necessary in this stage of the cause; but we shall allow it so much weight as to say that it deserves consideration, and that if the estate is by the will converted into personalty, the court has jurisdiction.

Several other points are presented, which are not now before us, the case having come up only on the question of jurisdiction, over that part of the fund which arose from a sale of the real estate. As in one view of that question — its conversion into personalty — the court would certainly have jurisdiction, and as that view, to say no more, ought not to be excluded, we shall reverse the order, and remand the cause for further proceedings.

To raise this question in the court below, the appellants will probably find it necessary to amend their petition. This the court can allow or not at pleasure, and can impose such terms as it may deem just.

Order of reversal and cause remanded.  