2004 ARTICLE 46

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. 38.) Wilhelm v. Wilhelm, 4 Md. Ch. 334.
Cited but not construed in Catlin v. Catlin, 60 Md. 580.

An. Code, 1924, sec. 16. 1912, sec. 41. 1904, sec. 41. 1888, sec. 41. 1820, ch. 191, sec. 10.

1884, ch. 50.

17. 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 valua-
tion, 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,
and the next in order the second choice, and so on in regular succession of
right until all the parts are taken or refused.

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.

The return of the commissioners should show that the parties entitled were allowed
the right of election. Stallings v. Stallings, 22 Md. 47.

The eldest son has the election to take all or any parcel or parcels of the estate.
Catlin v. Catlin, 60 Md. 582.

An election, so far as it went, held to be in strict accord with this article. Jenkins v.
Simms, 45 Md. 535.

See notes to sec. 20; also sec. 24, et seq.

An. Code, 1924, sec. 17. 1912, sec. 42. 1904, sec. 42. 1888, sec. 42. 1820, ch. 191, sec. 12.

18. The commissioners appointed as aforesaid, or a majority of them,
after having made partition or allotment in manner aforesaid, shall return
their proceedings to the next court to happen thereafter; and the same
shall be ratified or rejected, as justice shall dictate; and if ratified, and
no appeal by either party, the partition made as aforesaid shall be recorded
and remain and be binding; and if rejected, a 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 ascertainment of dower, and
the privilege of election. (See sec. 13.) Appeal. Parties. A return under a defective
commission is 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 countervailing 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. 46 and notes to sec. 10.

Election.

An. Code, 1924, sec. 18. 1912, sec. 43. 1904, sec. 43. 1888, sec. 43. 1820, ch. 191, sec. 17.

19. 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 hereinbefore
directed; and if the judgment of the commissioners shall be confirmed by
the court, then the person or persons entitled under this article to elect