Davis v. Reid, 3 Div. 712

CourtSupreme Court of Alabama
Writing for the CourtPER CURIAM; LIVINGSTON, C. J., and GOODWYN; LIVINGSTON
Citation264 Ala. 560,88 So.2d 857
PartiesFrances J. DAVIS et al. v. Martha Jane REID.
Docket Number3 Div. 712
Decision Date30 June 1956

Page 857

88 So.2d 857
264 Ala. 560
Frances J. DAVIS et al.
v.
Martha Jane REID.
3 Div. 712.
Supreme Court of Alabama.
June 30, 1956.

[264 Ala. 561] Edwin C. Page, Jr., Evergreen, and Wm. Hamilton, Greenville, for appellants.

Brooks & Garrett, Brewton, for appellee.

[264 Ala. 562] PER CURIAM.

This is an appeal from a decree of the Probate Court of Conecuh County setting apart a homestead and vesting fee simple title in the appellee.

J. A. Reid died in Conecuh County, Alabama, in 1934, leaving surviving him Martha Jane Reid, his widow, and several adult children, but no minor child or children. He owned at the time of his death 120 acres of land in Conecuh County, on which he and his wife lived.

On April 23, 1954, Martha Jane Reid, the widow of J. A. Reid, deceased, filed in the Probate Court of Conecuh County, her

Page 858

application to have set aside to her, as a homestead, the above-mentioned 120 acres of land, alleging that said lands were occupied by her and her husband as a homestead, and were worth less than $2,000, and that said lands were all the lands owned by J. A. Reid at the time of his death; that more than sixty days had elapsed since the death of J. A. Reid, and that there had been no administration of his estate.

Upon the filing of the petition, commissioners were appointed to appraise the real estate left by J. A. Reid, and, if warranted, to set aside a homestead exemption to the petitioner. The commissioners filed a report setting aside the said lands as a homestead to the petitioner, whereupon Frances J. Davis and R. Wesley Reid, grandchildren of the said J. A. Reid, filed exceptions on the ground that the property had a value in excess of the exemption allowed for homesteads. A hearing was held ore tenus before the probate judge, which resulted in a decree confirming the report of the commissioners and setting apart and vesting fee simple title in the petitioner. It is from this decree that the appeal is taken.

Appellant contends that the allegations of the petition were insufficient to invoke the jurisdiction of the court, for that the petition contains no allegation that the personal property owned by petitioner's deceased husband at the time of his death was less in value than the exemption allowed in favor of a widow. This question is raised for the first time on appeal.

The jurisdiction of the probate court to act to set aside homestead exemptions to a widow in the absence of an administration of the estate is statutory and limited, and it must appear from the face of the proceedings that it has acted within the scope of that jurisdiction. Nothing is presumed. The mere exercise of jurisdiction by the court or the existence of jurisdictional facts later appearing in the proceeding without the necessary jurisdictional averments in the petition will not aid the proceeding or give it validity. Walton v. Walton, 256 Ala. 236, 54 So.2d 498; Carter v. Carter, 251 Ala. 598, 38 So.2d 557; Craig v. Root, 247 Ala. 479, 25 So.2d 147; Miller v. Thompson, 209 Ala. 469, 96 So. 481.

The law in force as of the death of the decedent is the law to be complied with as to supplying the jurisdictional facts to be averred and shown. Craig v. Root, supra; Williams v. Overcast, 229 Ala. 119, 155 So. 543.

Section 7948, Code of Alabama 1923, was the law in force as of the death of the decedent. This is now Title 7, § 694, Code of 1940. Section 7948 of the Code of 1923 is as follows:

'When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow and minor child or children, or either, and no administration is granted on his estate within sixty days after his death, the probate [264 Ala. 563] court of the county in which he resided at the time of his death, upon the application of the widow, or if there be no widow, or she does not act, upon the application of a suitable person who shall be appointed by the judge of probate as the next friend of such minor child or children, verified by oath and setting forth such facts, as well as the names, condition, and residence, if known, of the heirs of the decedent, other than the minor children of the decedent, must appoint two commissioners who shall make a full and complete inventory and appraisement of the real and personal property of such decedent, describing the property and stating the value of each item or parcel thereof; and in estimating the value of such property, or any part thereof, if the same be held in pledge or under mortgage or other lien or incumbrance created prior to the death of the decedent, such encumbered property must be valued at

Page 859

only the excess of its value over and above the sum of such liens or other incumbrances.'

The exact question here presented has not been decided specifically by this court. There is language in some of our cases which would indicate that the petition must contain an averment that the real and personal property owned by the decedent at the time of his death did not exceed in amount and value the exemption allowed by law. See Hardy v. Morgan, 238 Ala. 251, 189 So. 878; Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105; Alford v. Claborne, 229 Ala. 401, 157 So. 226. There are many other cases where the opinions do not mention the existence or nonexistence of personal property, indicating that it is not necessary to make reference to the personal property in the petition when seeking to set aside the homestead under the statute in question. See Miller v. Thompson, 209 Ala. 469, 96 So. 481; Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113; Williams v. Overcast, 229 Ala. 119, 155 So. 543; Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Bates, 239 Ala. 214, 194 So. 647.

We have uniformly held that the petition must contain the jurisdictional allegations, but it is an unwelcome duty when we must declare void the proceedings setting aside a homestead for the lack of jurisdictional averments in the widow's petition, because in most cases it means the upsetting of a status quo which has been accepted as legal and correct by all of the affected parties for many years.

In the case of Williams v. Overcast, supra [229 Ala. 119, 155 So. 549], where the question was the validity of the decree of the probate court setting aside the homestead, the court stated the jurisdictional averments necessary in the petition to be: '(1) That the land was the homestead of decedent at the time of his death; (2) that it was the only real estate owned by him; (3) that it was not more than 160 acres in area; (4) and of less than $2,000 in value; and (5) that there was only one minor child who was named in the petition.' The next sentence is in part as follows: 'The evidence presented by this record shows these jurisdictional facts were averred in the widow's petition as they existed at the time of decedent's death.' The court was divided on the question of whether a child, who was a minor at the time of his father's death but was of age when the petition was filed, took his place with the adult heirs, but Justice Thomas states: 'The other Justices hold that the petition for setting aside the homestead and proceedings thereunder show no facts or failures rendering the decree of the probate court void as to the widow * * *.'

We have examined the petition filed by the widow in Williams v. Overcast, supra, in the original record, and there is no reference whatever to any personal property.

In Wright v. Fannin, supra [229 Ala. 278, 156 So. 851], 'the validity of the decree rendered, vesting the title absolutely in the widow, is challenged by the averments of the bill, as to the sufficiency of [264 Ala. 564] the widow's petition and averments therein of jurisdictional facts * * *', and the court said:

'What, then, were the jurisdictional facts required to have existed, to be alleged and proven to vest title absolutely? The statute is specific in its requirements, providing, in substance: (1) That the property be owned by decedent at the time of his death, and so occupied; (2) that it does not exceed in amount and value the exemption allowed by law in favor of his widow and minor child or children, or either; (3) that no administration is granted on his estate within 60 days after decedent's death; (4) that the petition indicate whether the land described constitutes all the land of decedent at the time of his death; (5) that the petition set forth the facts, as well as the names, condition, and residence, if known, of the heirs of the decedent,

Page 860

other than the minor child or children of decedent; and (6) that the petition be duly verified and filed in the county in which decedent resided at the time of his death. Section 7948, Code.'

(It should be noted that Williams v. Overcast, supra, was governed by the law in effect when W. B. Overcast died in 1914, which was prior to the addition to the statute of the requirement that the petition must show the 'names, condition, and residence, if known, of the heirs of the decedent.' This addition was applicable to Wright v. Fannin, supra, because A. S. Fannin died in 1926, after the addition to the statute. This accounts for the extra jurisdictional averment required in the latter case.)

We have examined the original record in the Wright case and there is no reference therein to personal property, yet, on rehearing this court said, 'The petition for homestead by the widow contained all the jurisdictional facts.'

In our recent case of Forbes v. Summers, 259 Ala. 271, 66 So.2d 762, 763, the entire court, as then constituted, had before it the petition of the widow, which is set out in the opinion. There is no reference made as to the amount and value of the personal property in the petition. The opinion begins:

'The question here in controversy is whether a petition to set apart a homestead to the widow under section 694, Title 7, as it appears in the Code...

To continue reading

Request your trial
9 practice notes
  • Southern Elec. Generating Co. v. Leibacher, 7 Div. 394
    • United States
    • Supreme Court of Alabama
    • 12 Marzo 1959
    ...sell for $500.00 or better than that.' In view of another trial we call attention to the fact that in the recent case of Davis v. Reid, 264 Ala. 560, 88 So.2d 857, it was said that Alabama has adopted the general or majority rule, known as the 'Massachusetts' Rule, which is to the effect th......
  • Astronautical Development Co. v. University of Ala., Huntsville Foundation Inc., 8 Div. 249
    • United States
    • Supreme Court of Alabama
    • 11 Diciembre 1969
    ...remote in point of time nor of such a character as to indicate that it did not represent the true value of the property. Davis v. Reid, 264 Ala. 560, 88 So.2d 857; Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d Appellant did not object to the question propounded Nerren......
  • Popwell v. Shelby County, 7 Div. 362
    • United States
    • Supreme Court of Alabama
    • 17 Noviembre 1960
    ...712. In Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308, this court recently observed that in Davis v. Reid, 264 Ala. 560, 88 So.2d 857, Alabama has adopted the general rule to the effect that evidence of the sales price of other lands voluntarily sold is admissible......
  • Durham v. Mims, 5 Div. 700
    • United States
    • Supreme Court of Alabama
    • 20 Agosto 1959
    ...and in the absence of such showing the decree will be void on its face. Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Reid, 264 Ala. 560, 88 So.2d 857; Cogburn v. Callier, 213 Ala. 46, 104 So. 330; Miller v. Thompson, 209 Ala. 469, 96 So. 481; Walton v. Walton, 256 Ala. 236, 54 So.2......
  • Request a trial to view additional results
9 cases
  • Southern Elec. Generating Co. v. Leibacher, 7 Div. 394
    • United States
    • Supreme Court of Alabama
    • 12 Marzo 1959
    ...sell for $500.00 or better than that.' In view of another trial we call attention to the fact that in the recent case of Davis v. Reid, 264 Ala. 560, 88 So.2d 857, it was said that Alabama has adopted the general or majority rule, known as the 'Massachusetts' Rule, which is to the effect th......
  • Astronautical Development Co. v. University of Ala., Huntsville Foundation Inc., 8 Div. 249
    • United States
    • Supreme Court of Alabama
    • 11 Diciembre 1969
    ...remote in point of time nor of such a character as to indicate that it did not represent the true value of the property. Davis v. Reid, 264 Ala. 560, 88 So.2d 857; Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d Appellant did not object to the question propounded Nerren......
  • Popwell v. Shelby County, 7 Div. 362
    • United States
    • Supreme Court of Alabama
    • 17 Noviembre 1960
    ...712. In Southern Electric Generating Co. v. Leibacher, 269 Ala. 9, 110 So.2d 308, this court recently observed that in Davis v. Reid, 264 Ala. 560, 88 So.2d 857, Alabama has adopted the general rule to the effect that evidence of the sales price of other lands voluntarily sold is admissible......
  • Durham v. Mims, 5 Div. 700
    • United States
    • Supreme Court of Alabama
    • 20 Agosto 1959
    ...and in the absence of such showing the decree will be void on its face. Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Reid, 264 Ala. 560, 88 So.2d 857; Cogburn v. Callier, 213 Ala. 46, 104 So. 330; Miller v. Thompson, 209 Ala. 469, 96 So. 481; Walton v. Walton, 256 Ala. 236, 54 So.2......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT