On Rehearing.
FOSTER, Justice.Since the application for rehearing was filed by appellant, appellant has made a motion, supported by affidavit and conceded by appellees, to reverse and remand the cause upon a showing that Isabelle Campbell, one of the complainants, died intestate during the month of February 1947. That was after the filing of the original bill, but before the' rendition of the final decree. Also that Sol Flicks owns an undivided curtesy or life interest in the share originally owned by Mamie Hicks, deceased, Mamie having died prior to the institution of this suit; but Sol Hicks has not been made a party to it. Matthews v. Matthews, 247 Ala. 472, 25 So.2d 259.
The. decree of the circuit court, in equity, upon which the appeal was taken, rendered on December 28, 1950, found and decreed that said Isabelle Campbell was at that time the owner of an undivided one-tenth interest in the land, subject to said rights there declared. Since at that time the said Isabelle Campbell was dead, and since her death had not been reported to the court and suit revived as to her interest, the decree of the circuit court cannot be sustained, and therefore should be annulled and vacated. 30 C.J.S., Equity, section 589, page 978; Martin v. Cothran, 240 Ala. 619, 200 So. 609; Griffin v. Proctor, 244 Ala. 537, 14 So.2d 116; Curry v. Holmes, 249 Ala. 545, 32 So.2d 39.
Upon the basis of that status, we extend the opinion, grant the application for rehearing, set aside our decree of affirmance, cancel and annul the decree of the trial court and remand the cause.
Application for rehearing granted.
LIVINGSTON, C. J., and LAWSON and SIMPSON, JJ., concur.