[Anglin v. Thomas.] was conflict in the evidence as to the ownership of the property levied upon, which was in possession of the husband and wife living together as such. The jury found for the plaintiff, and that the property was that of the husband, the defendant, and liable to plaintiff's attachment. There are several assignments of error, but all seem to have been abandoned in the brief of claimant's counsel, save the refusal of the court to give the following charge: "When there is a controversy as to whether property belongs to the husband or wife, the possession of the husband is not adverse to the wife and such possession is not evidence of the husband's title." When two persons are jointly in possession of property, the legal title being in only one of them, the law relates the possession to the title, and when a husband and wife living together have a community of possession of property, the legal title to which is in the wife, possession of such property will be referred to the title.-Larkin v. Baty, 111 Ala. 303. We cannot, therefore, see, when there is a community of possession, as in this case, that the possession of the husband would be adverse to the wife's title or evidence against the same, and for that reason said charge should have been given. Charges given at the request of claimant, doubtless put in the bill of exceptions to show us that the refused charge had been substantially given are considered. We are not unmindful of the rule that it should not work a reversal of the case when refused charges are but well repetitions of those given, even if not in the same language.-Smith v. State, 92 Ala. 30. Charge 1, which is as follows, "The possession of the husband is the possession of the wife when the title to the property is shown to be in the wife," is the only one that bears any similarity to the one in question and we do not see how it covers the salient features of the refused charge. This given charge ignores the considera [Edwards et al. v. Edwards.] tion of the husband's possession as not being evidence against the wife's title. Reversed and remanded. MCCLELLAN, C. J., TYSON and SIMPSON, J.J., concur ring. Edwards et al. v. Edwards. Petition for a Tenant in Common for the Sale of Lands and Division. 1. Trust estate; creation, continuance and termination of trust. Where lands are conveyed to a certain named person as trustee for the use, benefit and behoof of his wife and her children, and in special trust for the said wife and her children or issue "to live, dwell or inhabit thereon and therein, and for the support and maintenance of" the said wife, and "for the support, maintenance, protection and education of said children or issue," and there is conferred upon the trustee the power to sell the corpus of the estate in certain contingencies for reinvestment, to the same uses, upon the death of the wife who was the trustee and mother, the trust terminates, and the full legal title, freed from such trust, unites with the legal title in the children vesting in them an absolute fee simple title in the property conveyed. 2. Petition by co-tenant for sale of lands for division should aver petitioner's interest.-Where a tenant in common files a petition to have the property jointly owned sold for division upon the grounds that it cannot be equitably divided, the petition should set out the interest of the petitioner in said lands, and should pray a distribution of such interest of the proceeds to the petitioner. 3. Same; where minors are interested, guardians ad litem should be appointed. In a proceeding to sell lands owned by tenants in common for division, where some of the co-tenants are minors, it is error for the court to render a decree without having the infant defendants represented by a guardian ad litem. 4. Petition for sale of lands for division; when depositions of witnesses should be suppressed. In a proceeding to sell lands [Edwards et al. v. Edwards.] owned jointly for division among the co-tenants, upon the ground that the same cannot be equitably divided, where there is no notice of the filing of interrogatories given as required by the statute' (Code § § 732, 733, 3181) the depositions taken upon such interrogatories should be suppressed. APPEAL from the Probate Court of Autauga. The proceedings in this case were had upon a petition filed in the Probate Court of Autauga county, by the appellee, A. H. Edwards. It was averred in the amended petition "that A. H. Edwards, the petitioner, was a resident citizen of Autauga county, and was over the age of 21 years; that Holman Edwards, Mary Edwards, Sallie Edwards and Mrs. B. F. Small were the heirs at law of Dr. Charles A. Edwards;" that Dr. Charles A. Edwards died on June 10th, 1900, and that on Dec. 21st, 1889, the above named Holman Edwards died, leaving surviving him three children, viz: Eugene Edwards, Marie Edwards and the petitioner, A. H. Edwards; that on the 11th day of September, 1865, Daniel Pratt conveyed to the said Charles A. Edwards in trust for the use and benefit of Mrs. Agnes P. Edwards, wife of the said Charles A. Edwards, and the children of the said Agnes P. Edwards, by the said Charles A. Edwards, which said children were Holman Edwards, Sallie Edwards, Mary Edwards and Mrs. B. F. Small, certain parcels or lots of land specifically described, lying in and being situated in the town of Prattville, county of Autauga and State of Alabama; that the petitioner, A. H. Edwards and Eugene Edwards and Marie Edwards are the children of Holman Edwards, deceased, and they, together with Sallie Edwards, Marie Edwards and Mrs. B. F. Small are the joint owners of the lots of land specifically described in the complaint, "that the above mentioned lots of land cannot be equitably divided among the several joint owners of the same;" that Sallie Edwards, Mary Edwards and Mrs. B. F. Small are all over the age of twenty-one years. The prayer of the petition was as follows: "Therefore your [Edwards et al. v. Edwards.] petitioner prays that your honor will grant a decree of sale of the said lots, for a division thereof among the several joint owners as follows: a one-fourth interest to Miss Mary Edwards, a one-fourth interest to Miss Sallie Edwards, and a one-fourth interest to Mrs. B. F. Small, all of whom now reside at Chappell Hill, in the State of Texas, and a one-fourth interest to petitioner, A. H. Edwards, Eugene Edwards and Marie Edwards jointly, who reside at Prattville, Alabama." To the amended petition, the respondents demurred upon the following grounds: 1. That it was shown that the property sought to be sold was conveyed to Dr. Charles A. Edwards in trust, and that the probate court had not jurisdicion to entertain the petition and decree for the sale of said lands. 2. Said petition fails to show what interest the parties to said suit and each of them hold or own in said lands. 3. Said petition fails to disclose what interest, if any, the petitioner A. H. Edwards owned in said lands at the time of the filing of the petitition. 4. Said petition fails to show what interest, if any, said Holman Edwards, deceased, held in said lands during his lifetime. 5. Said petition shows that said Holman Edwards had no interest in said lands in his lifetime. 6. The age of Eugene Edwards and Marie Edwards are not set out in the petition. This demurrer was overruled. The respondents filed an answer to the petition in which they admitted the averments thereof, except the averments as to the children of Holman Edwards owning an interest in said lands, which facts they denied in their said answer. They attached to their said answer the deed executed by Daniel Pratt and wife to said Charles A. Edwards, conveying the property described in the petition. After granting and conveying said lands which, were described in said deed, the said deed then proceeds in its habendum clause, as follows: "That the said Charles A. Edwards is to hold the above mentioned and described premises as trustee, and they shall be held for the use, benefit and behoof of Mrs. Agnes P. Edwards, wife of said Charles A. Edwards, and the children by the said Charles A. Edwards and as trustee for [Edwards et al. v. Edwards.] them and in special trust for the said Agnes P. Edwards and her said children or issue, to live, dwell and inhabit thereon and therein, and for the support and maintenance of the said Agnes P. Edwards, and for the support, maintenance, protection and education of the said children or issue. The above mentioned and described premises are to be held only as trustee of the said Agnes P. Edwards and the said children or issue by the said Charles A. Edwards, and are not in any event whatever to be subject to the past, present or future liabilities, debts or obligations, either legal or equitable, of the said Chas. A. Edwards. And whenever the interest and convenience of the said Agnes P. Edwards and her said children or issue, require, demand or justify a sale of the aforesaid premises, then the said trustee, Chas. A. Edwards, is authorized and empowered to sell and convey the same to the highest bidder, either at public or private sale, for cash or on a credit, as he, said trustee, may think best and advisable, and invest the purchase money for the same as soon as collected in some other and suitable real estate, which real estate when so purchased, is to be held by said trustee as the aforedescribed premises, and subject to the same trusts, and for the same purposes." The petitioner propounded interrogatories. The first sentence of interrogatories was as follows: "Interrogatories to be propounded to J. L. Alexander and J. T. Floyd, in the above entitled cause"; which sentence was then followed by several interrogatories. At the end of said interrogatories, it was suggested that H. E. Gipson be appointed commissioner. These interrogatories were filed on March 28, 1902. On the same day, to-wit, March 28th, 1902, a commission was issued to H. E. Gipson. In the commission issued by G. S. Livingston, judge of probate of Autauga county, to H. E. Gipson, it was sated that he was appointed "as commissioner to take the answers to the interrogatories hereunto attached of J. L. Alexander and H. J. May, material witnesses for the plaintiff," in said cause. There was no notice given to respondents of the filing of said interrogatories, and there were no cross interrogatories |