Page:United States Reports, Volume 209.djvu/327

 209 U. & Opinion of the Court. heritance by the husband and others by purchase, and that just before the hearing the court permitted an amendment striking out the words "by purchase," so as in effect to cause the bill to allege that the propeYty transferred to the mother by the private agreement had been acquired by the husband by inheritance. But no avermerit tending in any way to de- flect the legal presumption of community as to property ac- quired during marriage wa w.de concerning the property allotted to the danght?rs, by the agreement, and which the bill, as amended, sought to administer and distribute. This being the esse, it follows that the necessary effect of the bill, as amended, was to assert that, notwithstanding the legal prumption of community, the 'interrot of the deceased wife in the property could be determined without the presence of her estate or of her heirs who were directly interested. It does not meet this difficulty to suggest that the effect of the agreement was to close the question of community, since the ground upon which the relief was sought was that the alpcement was void. Nor is there merit in/he suggestion that the prp. nee of the estate of the mother or her heirs was not necessary because the court Ielow found as a fact either that there was no community property, or if there was, that no ac- counting or liquidation was eential. But these findings could not be made in the absence of the estate of the mother or her heirs without in effect denying a hearing to those vitally While the considerations previously stated establish the im- possibility of affirming, and the nqcessity for reversing and re- manding, they also engender the inquiry whether,' in view of the nature and character of the relief sought by the bill, it is our duty to remand for a new trial, or with directions to dis- miss the bill because of an inherent want of jurisdiction to give the relief which the bill sought. Putting out of view for a moment the averments ind prayer of the bill relating to the nullity of the private agreement, nd the sales made of the property which was transferred by that

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