ART. 46] ELECTION. 1193

new partition shall be made and returned as aforesaid, and either party
may appeal from the judgment of the court to the court of appeals.

The return should show a strict compliance with the requirements of the
law. What the return should show as to notice, incumbrances, the ascertain-
ment of dower, and the privilege of election. (See section 37.) Appeal. Par-
ties. A return under a defective commission la itself defective. Stallings v.
Stallings, 22 Md. 47; Phelps v. Stewart, 17 Md. 241. And see Cecil v. Dorsey,
1 Md. Ch. 223.

The Judgment of the commission as to whether lands are devisable, though
not absolutely conclusive, will not be disturbed in the absence of countervail-
ing proof. Several objections to the return of the commission considered.
Wilhelm v. Wilhelm, 4 Md. Ch. 250; Cecil v. Dorsey, 1 Md. Ch. 223.

The proceedings of the court in affirming or rejecting the commissioners'
return are summary, the proofs not being reduced to writing or introduced
into the record. When such proceeding will not give rise to the plea of "res
adjudicata." Hardy v. Summers, 10 G. & J. 322.

If called in question, the commission and return should appear to have
been ratified. Massey v. Massey, 4 H. & J. 141.

Cited but not construed in Jenkins v. Simms, 45 Md. 536.

See sec. 70.

Election.

1904, art. 46, sec. 43. 1888, art. 46, sec. 43. 1860, art. 47, sec. 43.
1820, ch. 191, sec. 17.

43. If the estate consist of things indivisible in their nature, then
the commissioners, or a majority of them, shall proceed to appraise and
value the said estate, and make return thereof to the court as herein-
before directed; and if the judgment of the commissioners shall be con-
firmed by the court, then the person or persons entitled under this
article to elect to take other estates at the valuation of the commissioners
shall have the same election as it respects the estate provided for in this
section.

Division and election apply only to property held by inheritance, and not to
property taken by will or by purchase. Johnson v. Hoover, 75 Md. 489; Col-
ston v. Dorchester Court, 4 H. & McH. 283.

It is a fatal objection to a return, that the value of the estate in money
has not been stated. Cecil v. Dorsey, 1 Md. Ch. 223.

Cited but not construed in Jenkins v. Simms, 45 Md. 536.

See sections 41 and 44.

Ibid. sec. 44. 1888, art. 46, sec. 44. 1860, art. 47, sec. 44.
1820, ch. 191, sec. 9.

44. If the said commissioners, or a majority of them, shall determine
that the estate can not be divided without loss or injury to all the
parties, they shall make return to the court of their judgment, and
the reason upon which the same is formed, and the real value of the
estate in current money, subject to the encumbrance, if any, thereon;
and if the judgment of the commissioners shall be confirmed by the
court, then in the said court and before the expiration of the term next
succeeding that in which the return of the commissioners shall have
been confirmed, the eldest son, child or person entitled, if of age, shall
have election to take the whole estate and pay to the others their just
proportions of the value in money.