Lands of the intestate were sold by the administrator, under an order of the Probate Court, granted on his petition. The order of sale was granted on averment and proof that there was a deficiency of personal assets to pay the debts of the intestate. The lands thus ordered to be sold, were sold, and a part of the proceeds, left after paying expenses of sale, &c., remains in the hands of the administrator. The present bill was filed by the widow, Mary Bradford, and seeks to recover of the administrator a part of the money, proceeds of the sale of said land, in lieu of her dower interest in the same. The bill avers that the widow (complainant in this suit) had no notice of the proceedings in the Probate Court, and did not appear therein. This is fatal to her claim. The statute (Code of 1876, § 2469) contains the only provision which authorizes the widow to recover, in lieu of her dower, any part of the proceeds of lands sold under decree of the Probate Court. To come within that section, it was necessary for the widow to show that she had filed “ in the office of the probate judge her written consent that her dower interest in the land be sold, so as to vest in the purchaser a complete title.” Without such written consent so filed, the probate judge had no authority to “ order that the widow’s dower interest must be sold with the residue of the land”; and it is not shown that the probate judge did order the widow’s dower interest to be sold, or that it was sold. In the absence of such consent so filed by the widow, and in the absence of the probate judge’s decree that the widow’s dower *257interest be sold with the residue of the land, neither the order of sale, nor the sale, affected or impaired her dower claim in any way. It results that, according to the averments of her bill, the administrator obtained an order to sell, and did sell, only the residue of the land over and above the widow’s dower claim, if she have any, and that her right to dower has not been impaired thereby.—Barnes v. Carson, 59 Ala. 188. Even if Mrs. Bradford had brought herself within section 2469 of the Code of 1876, it is doubtful if she has any remedy outside of the Probate Court, as provided by section 2470, unless some special reason is shown for invoking the powers of the Chancery Court.—See Sherard v. Sherard, 33 Ala. 488; Steadman v. Steadman, 41 Ala. 473. The present bill, as framed, contains no equity.
Ordinarily, when the chancellor overrules a demurrer to a bill, and grants relief upon it, if we reverse his ruling on demurrer, we remand the cause, that the complainant may have an opportunity to perfect his bill by amendment. This is the rule, however, only when from the nature of the averments we can not perceive or affirm that the bill is not amendable.—Stallworth v. Farnham, 64 Ala. 259. If, from the pleadings and facts developed, it is affirmatively shown the complainant can not amend his bill so as to give it equity, or if it be affirmatively shown that the complainant can not recover, then it is our duty to pronounce final decree, and not to remand the cause.
We think there is nothing in the averments of the present bill, which shows it could not be so amended, as to bring it within the sections of the Code referred to above. But, the petition, proceedings, order of sale in the Probate Court, and the sale itself, are set up in the answer, and the record of those proceedings is made evidence in this cause. By that record it is shown that, in the petition for the order of sale, is an averment that the widow owned a statutory separate estate, which, exclusive of the rents, income and profits, was equal to, or greater in value than, her dower interest and distributive share in her husband’s estate. — Code of 1876, §§ 2715-6. The record also shows, that notice of the filing of this petition was served on Mrs. Bradford personally. She is not shown to have appeared, or made defense to the petition ; and we think the record enables us to affirm that no proof was made that she owned a statutory separate estate. The decree of sale recites what facts were proved, and this is not one of them. It does not refer to the dower, and does not order the dower interest of the widow to be sold with the residue of the land. — Code, §2469.. An amended bill, setting up the facts, would be fatally defective, first, because the *258dower interest has not been sold, or ordered to be sold. In the second place, it would place the complainant in an inextricable dilemma. She was either a party, or she was not a party, to the proceedings and order of sale in the Probate Court. She was neither a necessary nor a proper party; but the inquiry is, was she a party ? If a party, she was made so by the averment that she owned a statutory separate estate as copied above, and by the notice served on her. Now, if those proceedings made her a party, so as to make the decree binding and res judicata as to her, and thereby enlarged the order of sale, so as to include in the sale to be made her dower interest as well as the residue of the land, then it was equally binding on her as an adjudication that she was not entitled to dower, by reason of the statutory separate estate she owned. This would be fatal to the claim she asserts. On the other hand, if she is to be treated as not a party to those proceedings, then it follows that there was not, and could not be, any order to sell, or sale of her dower interest, and she is not entitled to any of the money she seeks by her bill.
The decree of the chancellor is reversed; and this court, proceeding to render the decree the chancellor should have rendered, doth order and decree, that the complainant’s bill be dismissed, at her costs in the court below and in this court.