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The Annotated Code of the Public General Laws of Maryland, 1924
Volume 375, Page 1712   View pdf image (33K)
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1712 ARTICLE 46.

application may be made to the circuit court for the county where the
estate lies, or if the land lies in different counties, to the circuit court for
the county where the greater part of the land lies, or if the land lies in
the city of Baltimore, then to the superior court or circuit court or .circuit
court No. 2 of said city; and the court shall appoint and issue a commission
of five discreet, sensible men, to be commissioners, authorizing and em-
powering them, or a majority of them, to proceed in the premises according
to the directions of this article, and in all respects conform to and comply
with the provisions hereof; and the said commissioners, or a majority
of them, before they proceed to act, shall severally take an oath (to be
annexed to the said commission), before some justice of the peace for
the county or city, or other person authorized to administer an oath, well
and faithfully to perform the duties required of them by the commission,
without favor, partiality or prejudice, and according to the best of their
judgment and understanding.

What allegations are necessary to give the court jurisdiction under this section?
Errors in procedure, though ground for a bill of review after decree, do not affect
jurisdiction. Tomlinson v. McKaig, 5 Gill, 275. And see Roser v. Slade, 3 Md.
Ch. 91; Hughes' Case, 1 Bl. 46; Chaney v. Tipton, 11 G. & J. 255; Hardy v. Sum-
mers, 10 G. & J. 323; Thompson v. Tolmie, 2 Pet. 163.

The bill or petition under this section must recognize the eldest son's right of
election and must be in accordance with the descent laws. Necessary allegations.
Chaney v. Tipton, 11 G. & J. 255.

The jurisdiction of equity, and of old county courts, in cases of partition where
land is situated in one county only, is well established. The proceedings may be by
ex parte petition or by bill and answer, but in both cases they must conform to
requirements of descent laws. What commission should require, and return show,
relative to widow's dower. Phelps v. Stewart, 17 Md. 239; Bennett v. Bennett, 5
Gill, 463. And see Hardy v. Summers, 10 G. & J. 322.

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; Colston v.
Dorchester Court, 4 H. & McH. 283.

Act of 1820, ch. 191, must be strictly complied with. A commission held not to be
in compliance with the law, and hence invalid. Stallings v. Stallings, 22 Md. 46.

If oath is not annexed to the commission, and the commission and return do not
appear to have been ratified, the commission is invalid. Massey v. Massey, 4 H.
& J. 141.

The court will not be prevented from issuing a commission by purchase of in-
terests of several of heirs, including a purchase from husband of one of heirs, of his
wife's interest, no binding conveyance having been procured from wife. Chaney v.
Tipton, 3 Gill, 334.

For a case involving the question of " res adjudicata," as applicable to a pro-
ceeding under this section, see Hardy v. Summers, 10 G. & J. 316.

History of acts dealing with " division and election " down to and including act
of 1820, ch. 191. Intent and construction of these acts. Catlin v. Catlin, 60 Md. 574.

An. Code, sec. 33. 1904, sec. 33. 1888, sec. 33. 1820, ch. 191, sec. 8.

9. Whenever a majority of the commissioners to be appointed in virtue
of this article shall qualify they may proceed in the execution of the same
in the same manner as they may do when the whole commissioners qualify
as aforesaid.

An. Code, sec. 34. 1904, sec. 34. 1888, sec. 34. 1820, ch. 191, sec. 14.

10. In the execution of this article, and before any proceeding is had
by the commissioners, they, or a majority of them, shall cause notice to be
given to all parties concerned by advertisement set up at the door of the


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The Annotated Code of the Public General Laws of Maryland, 1924
Volume 375, Page 1712   View pdf image (33K)
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