1714: ARTICLE 46.

and ascertain the value of the estate subject to the encumbrance; and if
the estate can, in the opinion and judgment of the commissioners, or a
majority of them, be divided without loss and injury to all parties entitled,
then they shall divide and make partition of the same, fairly and equally
in value, between all the parties interested, according to their several
just proportions.

This section requires that incumbrances should be inquired into, and a strict
compliance with this section is necessary. Stallings v. Stallings, 22 Md. 46.

The judgment of the commission as to whether lands are devisable, though not
absolutely conclusive, will not be disturbed in the absence of countervailing proof.
Wilhelm v. Wilhelm, 4 Md. Ch. 332.

The commissioners have authority to examine witnesses, and should include the
depositions with their return. Cecil v. Dorsey, 1 Md. Ch. 227.

This section referred to in construing secs. 16 and 19. Catlin v. Catlin, 60 Md. 580.

An. Code, sec. 39. 1904, sec. 39. 1888, sec. 39. 1820, ch. 191, sec. 9,

14. If the estate cannot be divided equally and fairly between all the
parties interested, according to their several just proportions, then the
commissioners, or a majority of them, shall have power to divide the
estate into as many parts as it is susceptible of without loss and injury
to all parties entitled, and to ascertain the value of each part of such
estate in current money, subject to any encumbrance thereon.
Cited but not construed in Catlin v. Catlin, 60 Md. 580.

An. Code, sec. 40. 1904, sec. 40. 1888, sec. 40. 1820, ch. 191, sec. 10.

15. If the commissioners, or a majority of them, shall determine that
the land or estate can be divided, in either of the ways hereinbefore
mentioned, without loss or injury to all the parties, they shall cause the
lands to be surveyed and laid out by the county surveyor, or such other
person as they may think qualified, for the several parties, in case the
estate consists of lands; and if the estate shall be equally divided between
all the parties interested, according to their several just proportions, then
the commissioners, or a majority of them, shall allot to the several parties
their respective shares of the said land; and in case the estate shall consist
of houses, the commissioners, or a majority of them, shall make allotment
and partition between the parties.

Where lands are divided in kind, the widow cannot be assigned a portion of the
land equal to her dower in the whole. (See sec. 37.) Wilhelm v. Wilhelm, 4 Md.
Ch. 334.

Cited but not construed in Catlin v. Catlin, 60 Md. 580.

An. Code, sec. 41. 1904, sec. 41. 1888, sec. 41. 1820, ch. 191, sec. 10. 1884, ch. 50.

16. If the estate cannot be divided into as many parts as there are heirs,
but exists in separate parcels, or can be divided into parts less than the
number of heirs, without loss or injury, then it shall be divided into as
many parts as it is susceptible of, and each parcel shall be separately
valued; then, upon the ratification by the court of such division and
valuation, the person first entitled to election, under the provisions of
this article, shall have the first choice of one of the parcels at the valuation,