Cassady v. Davis
| Decision Date | 16 December 1943 |
| Docket Number | 4 Div. 286. |
| Citation | 15 So.2d 909,245 Ala. 93 |
| Court | Alabama Supreme Court |
| Parties | CASSADY v. DAVIS et al. |
Appeal from Circuit Court, Coffee County; C.C Brannen, Judge.
H Grady Tiller, of Dothan, for appellant.
Carnley & Carnley, of Elba, for appellees.
On August 5, 1929, C.C. Holley died intestate, leaving as his sole heirs and next of kin his wife, Mary E. Holley, and his daughter, Mrs. C.B. Cassady (appellant), who was at the time over the age of twenty-one years. Subsequently, certain farm lands in Coffee County, Alabama, which is the property involved in this suit, together with an undivided one-half interest in a lot in Samson, Alabama, were set apart to Mary E. Holley out of her husband's estate as a homestead exemption. This was done by decree of the probate court of Geneva County, Alabama. The title, if any, of appellees to the farm lands arises by virtue of a deed executed by Mary E Holley which purports to convey a fee simple title. Mrs. C.B Cassady (appellant) contends (1) that a correct interpretation of the probate decree vested only a life estate in the farm lands in her mother, Mrs. Mary E. Holley, or (2) if this interpretation be rejected, then the probate decree is void because of fraud
perpetrated by her mother in its procurement, and (3) the probate court had no jurisdiction to set apart the homestead exemption to her mother because prior to the decree creating it, administration of the estate of her father had been finally settled.
The foregoing questions are presented by the ruling of the lower court in sustaining demurrers to the bill and dismissing the bill. The case is here on appeal from that decree.
Under the material averments of the bill, the petition of Mary E. Holley, filed in the probate court to have the homestead exemption set apart to her, contained the following allegation: "That at the time of his death the said C.C. Holley, Sr., owned no real estate in area sufficient for a homestead exemption to her, but was seized and possessed of the following lands situated in Coffee County, Alabama, which does not exceed in area 160 acres of land and in value $2000, namely."
Then follows in the petition a description of 159 acres of land located in Coffee County, Alabama, and also "lot No. 9 in Block No. 1 of the Snead's Addition to the town of Samson, Geneva County, Alabama, being a 1/2 interest only in said lot of land." The petition also contained the following: "Your petitioner hereby selects for herself the above described premises as exempt from administration and sale for the payment of debts as provided by Section 7919, Code 1923."
According to the bill, the commissioners made their report to the probate court, in part, as follows: "We set apart and allot to said Mary E. Holley * * * the premises occupied as a home at the time of the death of the deceased and described as follows, to-wit: "
Here follows a description of the property consisting of 158 acres in Coffee County, valued at $800, and an undivided one-half interest in the lot in Samson, Alabama, valued at $400, "the said premises containing in area 159 acres."
On September 22, 1930, the probate court rendered a decree confirming the report of the commissioners and setting aside as a homestead to Mary E. Holley the real estate described in her petition and in the report of the commissioners, but limiting her interest to a life estate. The decree contained the following recital: "That there is not a sufficient amount of lands where deceased lived to carve a homestead exemption."
The original bill of complaint in the case at bar was filed on April 15, 1941.
The bill alleges that "at the time of his death, C.C. Holley owned an undivided one-half interest in a lot and dwelling in the town of Samson in and upon which he and his family resided on and prior to said date." Accordingly, it is insisted by the appellant that Mary Holley could not claim as a part of her homestead the 158-acre tract of land located several miles from town and in an adjoining county and which was not used in his lifetime in connection with his homestead. It is contended that either Mary Holley intended her petition to cover her homestead in the town lot and her dower interest in the farm lands or that if that was not her intention, she perpetrated a fraud upon the court and appellant. We cannot sustain either insistence. We shall consider the contentions separately.
It appears from the bill that Mary Holley was appointed administratrix of the estate of C.C. Holley September 14, 1929, and according to the decree of the probate court, which was attached as Exhibit D to the bill, the estate had been declared insolvent prior to September 22, 1930, the date of the decree.
Section 7934 of the Code of 1923, Code 1940, Tit. 7, § 677, required notice to the next of kin of the report of the commission setting apart the exemption. Section 5998, Code 1940, Tit. 61, § 385, required notice to all persons interested in the estate of the filing of the report of insolvency. There is no allegation in the bill that appellant did not have the notices provided by law. It must therefore be assumed that complainant had notice that her mother had sought to have these lands set aside to her as a homestead exemption, and had notice that it was ascertained that decedent had no homestead exempt at the time of his death. It must also be assumed that appellant had notice that the report of the commissioners had been confirmed, that complainant had notice of the insolvency of her father's estate and that the homestead had been set aside to her mother.
Appellant filed no exception to either report and took no steps to resist either report. She had her day in court and is accordingly bound by the decree of the probate court. It plainly states that Mary E. Holley is allowed a homestead in the lands of the estate. The petition contained every allegation necessary to give the probate court jurisdiction. Since the decree, therefore, is not void on its face, it cannot be here collaterally assailed. Jenkins v. Clisby, 145 Ala. 665, 39 So. 735.
The decree of the probate court, therefore, was not open to the interpretation that it was intended by the decree to ascertain the dower rights of Mary E. Holley in the farm lands and not to set them apart as her homestead. The recital in the decree of the limitation purporting to limit the homestead to a life estate does not change the situation. The estate of C.C. Holley had been declared insolvent according to the decree. See §§ 7918 and 7919, Code of Alabama 1923, Code 1940, Tit. 7, §§ 661, 662.
Headen v. Headen et al., 171 Ala. 521, 527, 54 So. 646, 648.
The second aspect of the bill is based upon fraud, that is, that the widow in her petition alleged in conformity to Section 7919 of the Code of 1923, Section 662, Title 7, Code 1940 that the decedent at the time of his death had no homestead exempt to him from levy and...
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Durham v. Mims, 5 Div. 700
...in the petition, if they had no notice they could obtain full relief through some form of seasonable direct attack. In Cassady v. Davis, 245 Ala. 93, 15 So.2d 909, 911, this court had under consideration a case similar to the one now before us. There an adult child of decedent sought to avo......
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...the limitation is fixed at three years, subject to the statute giving one year after discovery of the fraud. See also Cassady v. Davis, 245 Ala. 93, 15 So.2d 909. 'It appearing on the face of the bill that it was filed more than three years after the date of the decree sought to be vacated,......