Alford v. Claborne

• Decision Date: 18 October 1934
• Docket Number: 3 Div. 68.
• Parties: ALFORD et al. v. CLABORNE et al.
• Court: Alabama Supreme Court

157 So. 226

229 Ala. 401

ALFORD et al. v. CLABORNE et al.

3 Div. 68.

Supreme Court of Alabama

October 18, 1934

Rehearing Denied Nov. 8, 1934.

Appeal from Circuit Court, Escambia County; F. W. Hare, Judge.

Bill in equity by Jake Claborne and others against J. S. Alford and others. From the decree, respondents appeal, and complainants assign cross-errors.

Reversed and remanded.

Repeal of statute by implication is not favored.

The bill is filed by Jake Claborne and others (nieces and nephews of William Jackson, deceased). It is alleged that said William Jackson died intestate in 1926, owning the property involved, and leaving surviving him his widow, Martha Jackson, and no minor children or other lineal descendants. Some time after the death of William Jackson, his widow Martha Jackson, married one Culliver, but said Martha Jackson Culliver is now dead.

It is alleged that in 1928, Martha Jackson Culliver filed her petition in the probate court praying that the entire property of William Jackson be set apart to her as a homestead in such form as to vest in her the absolute title. It is further alleged:

"10. Complainants would show unto the Court that the averments as to the area and value of the property owned by the decedent at the time of his death, as set out by petitioner, in paragraph three of said petition, are in words and figures as follows: "'That the said William Jackson owned at the time of his death, the following described real estate situated, lying and being in Escambia County, Alabama, to-wit: N. 1/2 of S.E. 1/4 and all that part of the S. 1/2 of N.E. 1/4 lying south of the public road leading from Brooklyn, Alabama to Brewton Alabama, in Section 11, Township 2, No. of Range 12 E. Said real estate consisting of one hundred six acres and having a value of less than Two Thousand Dollars ($2,000.00).'

"11. And complainants would further show unto the Court that nowhere in said petition is it averred that 'the property, real and personal, owned by decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow and minor children or either.' Neither is it averred that 'the realty left by the decedent at the time of his death did not exceed in amount and value the exemption allowed the widow.'

"Nor is it averred in said petition that, 'the real property owned by the decedent at the time of his death did not exceed in amount (or area) one hundred sixty (160) acres.' That it nowhere affirmatively appears in said petition that the decedent at the time of his death, did not own more than One hundred sixty (160) acres of land. And complainants aver that said petition did not contain the necessary averment, without which the Court was without authority to proceed."

The probate court rendered a decree confirming the report of commissioners and purporting to vest title to the property absolutely in Martha Culliver.

Thereafter, it is alleged, Martha Culliver and her husband conveyed the entire property by warranty deed to respondent J. S. Alford, for a recited consideration which, it is alleged, was never paid. Thereafter Martha Culliver died, leaving surviving her Cull Culliver, her husband, but no minor children or other lineal descendants. Respondent Alford has, since the execution of deed to him been in possession of the land, but has executed a mortgage thereon to the other respondent, E. N. Amos.

C. B. Fuller, of Andalusia, for appellants.

J. D. Hollis, of Birmingham, and Hugh M. Caffey, Jr., of Brewton, for appellees.

GARDNER Justice.

We are persuaded-all other matters to one side as of no controlling importance-that the cross-appeal presents the meritorious question in the case, and one which determines the substantive rights of the parties.

The chancellor, in the first decree rendered, sustained demurrer to the bill, upon the theory that the decree of the probate court setting aside exemptions to the widow of William Jackson, deceased, was valid and sufficient to vest in her the absolute title thereto under section 7948, Code 1923.

The bill alleges that in 1926 William Jackson died in Escambia county, Ala., owning and in possession of certain lands therein described, containing 200 acres, and that in August, 1928, his widow filed her petition for exemptions, describing 106 acres of land as owned by her deceased husband. A copy of the petition is made an exhibit to the bill, but its infirmities, so far as concerns the question here considered, are pointed out in paragraphs 10 and 11 of the bill, which appear in the report of the case.

The chancellor concluded that the averments of the petition were in substantial harmony with the language construed in Singo v. McGhee, 160 Ala. 245, 49 So. 290, and Miller v. First National Bank, 194 Ala. 477, 69 So. 916, 917. But we are persuaded there is a marked distinction.

In the Singo Case, supra, the petition alleged "that said George Singo owned real and personal property located in this state and county at the date of his death, which did not exceed in amount or value the exemptions allowed the widow" (italics supplied), and in the Miller Case, supra, the averments were to like effect, "that the said Stephen Forrest owned at the time of his death real and personal property which does not exceed in amount and value the exemptions allowed by law in favor of the undersigned applicant."

But the petition here considered contains no such averments or anything even indicating such a conclusion, and clearly the majority opinion in the Singo Case was rested upon the language of the petition which appears above as italicized. The averments in the Singo and Miller Cases that the property owned by decedent at his death did not exceed in amount and value that allowed by law as exempt, were the equivalent of the statement that the real estate did not exceed 160 acres of land, the value of which was not in excess of $2,000. There is nothing in the present petition to supply the deficiency, and the above-noted cases cannot be relied upon to sustain its sufficiency. That such was a necessary jurisdictional averment of the petition, we think, is clearly established by our decisions.

In Brooks v. Johns, Adm'r, 119 Ala. 412, 417, 24 So. 345, 347, speaking of just such a defective petition, the court said: "The widow here made the application, but it did not contain the necessary averment without which the court was without authority to proceed,-that the real property of decedent, at the time of his death, did not exceed the amount and value allowed to his widow, etc. This averment, which seems to have been industriously avoided, was jurisdictional."

And the decision in Chamblee v. Cole, 128 Ala. 649, 30 So. 630, is rested upon this authority; the holding being to the effect that, as the petition was lacking in this jurisdictional averment, the proceedings were void.

In Cogburn v. Callier, 213 Ala. 46, 104 So. 330, 333, is the following language, also here pertinent: "Where there has been no administration of the estate, and an independent petition is filed for allotment of homestead under the code sections referred to, the petition must show the facts prescribed by the statute, which are regarded as jurisdictional; and, in the absence of such a showing the decree will be void on its face. Miller v. Thompson, 209 Ala. 469, 96 So. 481, 483; Chamblee v. Cole, 128 Ala. 649, 30 So. 630."

And in Miller v. Thompson, 209 Ala. 469, 96 So. 481, 482, the following: "It is the settled law of this state that the court of probate when it proceeds to set apart and allot homestead exercises a special and limited jurisdiction, which only attaches when a petition is filed containing the necessary allegations." See, also, Chambers v. Chambers, 218 Ala. 192, 118 So. 385, and Williams v. Overcast (Ala. Sup.) 155 So. 543.

But it has been suggested that, as the probate decree recites that the petition did contain the jurisdictional averment, that sufficed and will sustain the proceedings. The recital in the decree is without support in the petition, and, as pointed out in the Singo Case, supra, the court being "without authority to proceed, the subsequent findings and recitals in the decree could not supply the absence of averments essential to its right to proceed with the case." See, also, Martin v. Martin, 173 Ala. 106, 55 So. 632. And this conclusion was reiterated in Keenum v. Dodson, 212 Ala. 146, 102 So. 230, 231, where the court, citing the Singo Case, supra, said: "Therefore if we construe the present bill as...