"Lands of an estate may be sold by order of the Probate Court having jurisdiction of the estate, when the estate can not be equitably divided amongst the heirs or devisees.”—Code of 1876, § 2449.
“ If, on the hearing of the application, the facts are not proved, the same must be dismissed at the costs of the applicant, for which execution may issue against him and his sureties.”—lb. § 2459.
One of the fundamental conditions—one of the jurisdictional facts—on which this power of the Probate Court can be called into exercise, is, that there are heirs or devisees of' the estate, amongst whom the lands can not be equitably divided. Division implies two or more claimants or recipients ; and its aim and object are, that the property, when divided, shall pass into separate enjoyment. Hence, a petition for a salemf lands, which shows on its face that there' is but one heir or devisee, is a nullity, because it presents a case over which the Probate Court has no jurisdiction to decree a sale.—Pettit v. Pettit, 32 Ala. 288, and authorities-cited.
The legal title to the lands in controversy was in John S-Gillespie, father of the present appellants, at the time of his-*443death. At his death he left a widow, Martha S. Gillespie, and one child, James M. Gillespie, then three years old. His wife was then pregnant, and after the order of sale was obtained, under which the lands were sold, was delivered of' another child, who still lives, and is named John S. Gillespie. The petition sets forth that the estate is solvent—and “ further represents to your honor that the heirs of said,deceased are his child, a son named James M. Gillespie, about three years of age—who is a resident of said county, and who lives with his mother, Martha S. Gillespie, the widow of said deceased, who is of full age and a resident of said county, and who is now believed to be pregnant at this time.” The petition then described the lands, containing about 700 acres, and proceeded with the averment that “said lands are of' unequal value, and are so situated and are of such dimensions respectively that they can not be equitably divided among said heirs.”
This petition was filed by the administrator of the estate, was addressed to the probate judge of the proper county— the court took jurisdiction of the case, made the proper orders, had proof taken by deposition as in chancery causes —and granted an order to sell the land for division. The administrator proceeded, after advertisement, to sell the land,, and Daniel W. Prentice became the purchaser, and obtained possession and a deed to the land. Ejectment was brought by the two heirs of Gillespie above named, to recover possession of the lands, and .rents, from the heirs of Prentice. The bill in the present case was filed by the administrator and heirs of Prentice to enjoin the prosecution of said action of ejectment; and the question which meets us at the threshold, is, was the sale, made under said order of the Probate Court, void for want of proper jurisdictional averments?
¥e have seen above that the petition sets forth only one heir, James M. Gillespie, and the belief that there will be another, then in ventre sa mere. Had this unborn child such-a legal existence, as that, with the other named heir, it gave the court jurisdiction to order a sale for division between the two ?
In Marsellis v. Thalhimer, 2 Paige, 35, the court said, “ The broad and unqualified language -which has been used by some of the judges, has induced the appellant's counsel to-suppose the unborn child was to be considered in existence for every purpose whatever, whether for its own benefit, or that of others. . . . But it must be recollected that the existence of the infant as a real person before birth is a fic— *444tion of law, for the purpose of providing for and protecting the child, in the hope and expectation that it will be born ■alive, and be capable of enjoying those rights, which are thus preserved for it in anticipation. The rule has been derived from the civil law; . . . although by the civil law of successions, a pothumous child was entitled to the same rights as those born in the life-time of the decedent, it was only on the condition that they were born alive, and under such circumstances that the law presumed they would survive. . . . Children in the mother’s womb are considered, in whatever relates to themselves, as if already born; but children born dead, or in such an early stage of pregnancy as to be incapable of living, although they be not actually dead at the time of birth, are considered as if they had never been born or conceived.”
In Bowman v. Tallman, 27 How. Pr. Rep. 212, 272, the court said, “ Infants unborn are not seized, hence courts can not sell their interests, because such interests do not exist; they can sell only interests existing.”
In Jenkins v. Freyer, 4 Paige, 47, 53, it was said that “ a child in ventre sa mere at the death of the testator is considered as in esse, if it is afterwards born alive.”
In Harper v. Archer, 4 Sm. & Mar. 99, 109, the court said “it is now settled, both in England and in this country, that from the time of conception, the infant is in esse, for the purpose of taking any estate which is for his benefit, whether by descent, devise, or under the statute of distribution, provided, however, that the infant be born alive, and after such a period of foetal existence that its continuance in life might be reasonably expected.”
In Mason v. Jones, 2 Barb. Sup. Ct. 229, 252, the court, speaking of a clause in 'their statute, in the following language : “ Where a future estate shall be limited to heirs, or issue, or children, posthumous children shall be entitled to take in the same manner as if living at the death of their parent,” employed the following emphatic words: “ Here then is a complete annihilation, in law, of the time that may elapse between the death of a father, and the birth of a previously begotten child. The instant such child is born, it is made to step back to the end of the father’s life, there to take its stand, and become clothed with all the rights of property previously conferred.”—See also Howe v. Van Schaick, 3 Barb. Ch. 488, 508; 1 Shars. Blacks. 130, and note.
From the citations above, it results that although an unborn child is treated as having an existence for certain purposes *445beneficial to it, yet, this existence is conditional and imperfect, and confers no rights of property, until it is born alive. "When that event happens, to preserve successions, and to prevent forfeitures, it becomes, by relation and legal fiction, a separate, individual person having personal and property rights, dating back to the time of conception, when such backward step is necessary to protect a descent or devisé. If, hoAvever, the fcetus is neArer born alive, then it is treated as if it never had an existence.
Under the facts of this case, Ave feel compelled to hold that at the time the order of saleAvas petitioned for and obtained, Mr. Gillespie, the intestate ancestor, had but one heir-at-law— James M. Gillespie; and that the petition Aras fatally wanting in necessary averments to give the Probate Court jurisdiction. The legal title, then, ay as not diATested by the sale and con-A’eyance, but still remains in the heirs of John S. Gillespie.
It is contended, hoAvever, by the appellees—heirs of Prentice—that the Gillespie heirs are estopped from asserting their legal title, by reason that James McAdory, their guardian, received the purchase-money of the lands, and invested it for their benefit.
When the purchase-money AA-as received by the guardian in 1863—the heirs Avere infants of very tender years; about seven and four years old. They Avere infants during all this litigation, and one of. them is still an infant. The eldest attained his majority during the year 1877. The investment for the alleged benefit of the Avards, was an investment of Confederate treasury-notes, in which the collection was made, in Confederate bonds, Avhich perished AAuth the doAvnfall of the Confederate struggle. So, the investment has not benefited the wards, and they do not appear to have had any enjoyment of it. No act of ratification by them is proved; and Avhen their suit Avas brought, they Avere infants, incapable of ratifying an unauthorized sale of their lands.
Nor could their guardian estop them, by an unauthorized receipt of the purchase-money of their land, sold without ■authority of laAV. To hold the-AYards estopped by such receipt, Avould lead to all the mischiefs of private, unauthorized sales of lands held, or controlled in trust, against which our statutes haATe so sedulously guarded the interests of persons not sui juris. Infants, as. a rule, can do no act Avhich will amount to an estoppel en pais.—Herman, Estop. 237, 313; Bigelow on Estop. 486-7; Brown v. McCum, 5 Sandf. Sup. 224; Schnell v. Chicago, 38 Ill. 382. See also Franklin v. Gantt, 12 Ala. 298.
*446The point first above considered is one of purely legal cognizance, and presents no question for equitable interfer- ■ ence. The last point is not well taken, and does not furnish the constituents of an estoppel.
Nor is there any thing in the argument based on the • clauses of the elder McAdory’s will, in which he provided that on a contingency therein named, the Gillespie heirs should forfeit the legacies he gave them. There was no attempt, by the suit for the recovery of the land, to hold the administrator of the Gillespie estate, or the guardian of the minor heirs, accountable for the conduct of their respective ■■trusts.
The decree of the chancellor is reversed—and this court proceeding to render the decree which the chancellor should have rendered, doth order and decree that the bill in this cause be, and the same is hereby dismissed, at the costs of complainants therein, incurred in the court below and in this court; and the injunction therein granted is dissolved.