
    Jones et al. v. Carter et al.
    
      Bialkowski, Bialkowski & Bialkowski, for complainants.
    
      Daniel H. Jenkins, for defendants.
    April 24, 1942.
   Leach, P. J.,

Plaintiffs’ bill asks for partition of the homestead left by Frederick Carter, who died November 28,1941. Plaintiffs are adult children, each having a one-sixth interest in the homestead, and they ask for partition or sale as against the widow, who owns a one-third interest, and her two minor children, each owning a one-sixth interest, one of them being a soldier in the United States Army, last heard from at Pearl Harbor, Hawaii.

The application originally arose on preliminary objections to the bill, but by agreement of counsel is to be treated by the court as if an application had been made on behalf of the minor soldier for stay.

Under the Soldiers’ and Sailors’ Civil Relief Act of October 17, 1940, 54 Stat. at L. 1178, sec. 201, in the discretion of the court, any action in which a person in the military service is involved, either as plaintiff or defendant, shall be stayed unless in the opinion of the court the ability of the plaintiff to prosecute the action, or the defendant to conduct his defense, is not materially affected by reason of his military service.

In the opinion of the court the ability of defendant to take care of his interest upon a sale of his homestead, in which his mother and her other minor child live, would be materially affected. Such might not be the case in event that a purchaser existed and every one was reasonably willing to have partition made, or if the objection to the purchase were made by one of the adult children instead of the mother, and the mother and the others were agreeable.

In the case at bar it would materially affect the soldier who left a home and a roof to come back to a few dollars, which might be very few on account of a forced sale at this time, and to no home, no job, and with the possibility of having a mother to support.

Now, April 24, 1942, it is ordered that the proceedings in the above case be stayed until the expiration of the service of William Carter, one of the defendants in the said case.  