Frazer's Executors v. Lee. said Frazer, by order of the probate court, and purchased by him; but denied that said sale and purchase was a fraud upon complainants; and insisted that he acted fairly and honestly in each and every sale of both realty and personalty and to the best of his judgment; defendant admitted that he had no interest in said lands at the time of the sale, except by virtue of his said marriage and his being administrator of said estate. There was a decree pro confesso against Mildred R. Frazer. The chancellor decreed, that the sale of the lands described in the answer of Allen Frazer and purchased by him, be set aside and annulled; that the register ascertain the annual value of the use and occupation of said lands since the day of said purchase by said Allen Frazer, calculating interest upon the value of the use and occupation for each year, from the time it became due, and that the administration of the estate of John H. Lee, deceased, be removed into said chancery court, and that the register take and state the account and proceed with the settlement of the estate according to law. This decree was rendered at the December term, 1866, of said court. On the 20th May, 1867, W. J. Frazer, John A. Frazer and Jas. F. Frazer, appeared before the register and produced letters testamentary, duly granted to them as executors of the last will and testament of Allen Frazer, one of the defendants in this cause, and adduced satisfactory evidence that said defendant died after the final decree in said cause had been rendered, and before appeal taken, and applied for an appeal to this court, to be taken by them as such executors, which was allowed by said register, and they appeared in this court as appellants and assigned the final decree as error. RICE, SEMPLE & GOLDTHWAITE, for appellants. JUDGE, J.-The charge of fraud in the sale of the lands by Allen Frazer, is denied by the responsive allegations of the answer, which are to be taken as true; the cause having been heard on bill and answer without testi Frazer's Executors v. Lee. mony, and an answer under oath not having been waived. (Code, § 2902.) Frequent adjudications have been made by this court, upon the question of purchases by executors and administrators at their own sales; and the rule clearly established by them is, that an executor or administrator, having an interest in the estate, may purchase at his own sale, provided it is fairly conducted.-Saltmarsh v. Beene, 4 Porter, 283; McLane v. Spence, Adm'r, 6 Ala. 894; McCartney et al. v. Calhoun, 17 Ala. 301; Payne v. Turner, 36 Ala. 623. In the present case, it is alleged in the bill, and admitted in the answer, that Frazer had no interest in the lands sold, coupled with the trust which devolved upon him as administrator; and this leaves him standing as an ordinary trustee, who has purchased at his own sale. The well settled rule in such cases, is, that, notwithstanding the sale, the cestui que trust may still look upon the property as bound by the trust, and may apply, within a reasonable time, to have a re-sale, without showing any injury to his rights, or benefit to the trustee.-Cunningham's Andm'rs v. Rogers, 14 Ala. 147; 1 Story's Eq. 317. As we held in Charles v. Duboise, 29 Ala. 371, "the purchase by a trustee at his own sale, is simply voidable, at the option of the cestui que trust, seasonably expressed; and it is totally immaterial that the trustee has acted with fairness, and made no profit." See also, Andrews et al. v. Hobson's Adm'r, 23 Ala. 219. The appellees are minors, and we must hold they have made "seasonable application" to set aside the sale. There is no error in the decree, and it is affirmed. Donald, Adm'r, v. Portis, Adm'r. DONALD, ADM'R, vs. PORTIS, ADM'R. [FINAL SETTLEMENT OF DECEDENT'S ESTATE.] 1. Widow's right to dissent, personal-The widows right to dissent from the will of her deceased hushand, (Code, § 1610), is personal to her, and can not be exercised by the administrator, in the event of her death within the twelve months, without having expressed her dissent. APPEAL from the Probate Court of Dallas. IN the matter of the estate of Daniel Enlon, deceased; said Enlon died in the spring of the year 1848, in Dallas county, leaving a last will and testament, which was admitted to probate on the 19th day of July, 1858, in the probate court of Dallas county. His wife, Nancy, who was a legatee and devisee under said will and executrix, but who never qualified as such, survived him; she died in said county in 1854. After several administrators of the estate of said Daniel Enlon, deceased, had been appointed and resigned, Thomas J. Portis, the appellee in this case was appointed in the year 1860, the administrator with the will annexed of Daniel Enlon, and qualified as such. Nancy Enlon also left a will, which was on the 27th March, 1854, duly admitted to probate in the probate court of Dallas county, appointing John C. Chisholm her executor. Said executor resigned his trust, and on the 17th February, 1859, one William Johnston was duly appointed and qualified as administrator de bonis non with the will annexed of the estate of said Nancy, and on the same day, as such administrator, filed in said probate court, his dissent in writing, from the will of Daniel Enlon, deceased, and said dissent was duly entered on the minutes of said court. In June, 1859, said William Johnston died, and on the 24th November, 1859, J. G. Donald, the appellant, was duly appointed administrator de bonis non with the will annexed of the estate of said Nancy, and qualified as such. It appeared Donald, Adm'r, v. Portis, Adm'r. that said Daniel died leaving no children (r their descendants, but left brothers and one sister and their descendants living. On the 1st February, 1861, said Thomas J. Portis appeared in said probate court and made a final settlement of his administration on the estate of said Daniel. J. G. Donald, as administrator de bonis non, &c., of said Nancy, appeared by attorney on said settlement, and claimed that as such administrator he was entitled to one-half of the sum ($15,293 14) remaining in the hands of said Thomas J. Portis, for distribution. Issue was joined on this claim, and the court refused to allow it, and said J. G. Donald appealed to this court. This was the only point raised by the assignments of error. PETERS & DAWSON, and WATTS & TROY, for appellants. ALEXANDER WHITE, GEORGE GAYLE, and JOHN A. ELMORE, contra. A. J. WALKER, C. J.-It is understood that the merits of this case have been settled, and that a decision upon the question of reversal or affirmance is only required for the purpose of adjudging the costs of this court. In this condition of the case, the cause is placed in our hands for decision, without argument, brief, or statement of the points arising in the case. We have examined the case without any of the usual helps in our investigation, and conclude, that the only point in the case as presented is, whether the administrator of Mrs. Nancy Enlon was entitled to a distributive share as the representative of the widow of Daniel Enlon, the decedent, from a decree on the settlement of whose estate the appeal is taken. The decision of this question, we understand from the record, depends upon the other question, whether, after the death of a testator's widow, her administrator can, within twelve months after the probate of the will, dissent, and take a distributive share instead of the testamentary provision. This question we decide in the negative, upon the ground that the right of dissenting from the will of a deceased husband, given to the widow by our statute, is personal and not trans Lockhart v. Wyatt. missible to her administrator.-2 Scribner on Dower, 468, 480; 2 Redfield on Wills, 754; Welsh v. Anderson, 28 Missouri, 293. Affirmed. LOCKHART vs. WYATT. [MOTION FOR NEW TRIAL AFTER FINAL JUDGMENT.] 1. When appeal does not lie.-An appeal does not lie from the action of circuit court on a motion for a new trial, under the provisions of the act, approved February 11th, 1867.-(Rev. Code, § 2827.) APPEAL from the Circuit Court of Perry. Tried before the Hon. R. W. COBB, as special judge, appointed under the provisions of section 758 Revised Code, in consequence of the incompetency of the Hon. JOHN MOORE to preside. THIS was an application on behalf of the appellant for a new trial, and was made at the fall term, 1867, of the circuit court of Perry, under the acts of the legislature, 11th February, 1867, and 18th February, 1867.-Pamphlet Acts, 392, 568; Rev. Code, § 2827. Wyatt, the appellee, instituted suit against the appellant, in said circuit court, on the 4th April, 1861, and at the fall term, 1862, recovered a judgment by default against him, for a large amount. At the fall term, 1867, of said court, the appellant made an application for a new trial in said cause, on the ground that he had a good and meritorious defense, and that his failure to make defense was not owing to any fault on his part, which was supported by his affidavits. The appellee appeared and contested said motion, and the court overruled said motion, and refused to grant a new trial. From |