Forbes v. Summers

• Decision Date: 30 June 1953
• Docket Number: 7 Div. 123
• Parties: FORBES et al. v. SUMMERS et al.
• Court: Alabama Supreme Court

Page 762

66 So.2d 762

259 Ala. 271

FORBES et al. v. SUMMERS et al.

7 Div. 123.

Supreme Court of Alabama.

June 30, 1953.

Ross Blackmon, Anniston, for appellants.

Merrill, Merrill & Vardaman, Anniston, for appellees.

PER CURIAM.

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 of 1940, is sufficient to have conferred jurisdiction on the probate court to do so.

In this case a bill was filed in equity by some of the children of the decedent against others for a sale of the homestead for division, making as parties respondent the successors in interest of it from the widow, and seeking to have the title claimed by the widow and her successors resulting from that proceeding held to be void for want of jurisdiction of the probate court. Such successors demurred to the bill, in substance for present purposes, that the bill does not show the alleged absence of jurisdiction and invalidity of the proceeding. The trial court overruled that demurrer, and respondents have appealed.

The said widow is now dead and, therefore, if she only had a life interest in the property, that right is not now important.

The bill points out the absence of jurisdictional allegations as follows: (1) That decedent, Ben W. Weir, was at the time of his death a resident of Calhoun County, Alabama; (2) that he was not survived by minor children; and (3) that more than sixty days had elapsed after the death of said decedent--there having been no administration.

In order to understand the exact nature of the insistence, it is necessary to set out in extenso a copy of the petition to the probate court seeking to invoke the benefit of section 694, supra. It is as follows:

'Probate Record Book 23 Page 145

'The State of Alabama County of Calhoun

Petition of Maggie Weir Homestead Exemption

In the Probate Court of Said County

'To the Honorable S. E. Boozer, Judge of said Court

'Comes Maggie Weir and respectfully shows to the Court as follows:

'1. That she is a resident of said County and State, and over the age of twenty-one years; that she is the surviving widow of the hereinafter named decedent, and as such filed this petition to assert her homestead rights in the following described property.

'2. That on to wit: the 24th day of May, 1946, Ben W. Weir died in said County and State, seized and possessed of the following described property situated in said Calhoun County, in the State of Alabama, to-wit:

'Lots 19 and 20 in Block 224----

'Lot 19 of Buxton's addition as in plot thereof recorded in the office of the Judge of Probate for Calhoun County, Alabama. Said lot being thirty-five feet front on Alboin Street and running back equal width to an alley.

'Lot 20 in Block 224--running thirty-five, more or less, on the west side of Alboin and running back 110 feet on the south line and 95 ft., more or less, on the north line as designed on the map of Anniston City Land Co., of Anniston, Alabama.

'Both of said lots constituting the homestead of said Ben W. Weir at the time of his death.

'The said property is all of the real estate owned by decedent at the time of his death in Alabama or elsewhere. Said property is of the value of less than $2,000.00 and less in area than 160 acres, and was occupied or claimed by said decedent as his homestead at the time of his death.

'3. Said decedent left surviving him as his widow your petitioner, Maggie Weir, and the following children, being his only heirs at law, whose names, ages and places of residence are as follows, to wit:

'Catherine Camelia Weir of the age of over 21, Anniston, Alabama, residing temporarily at Kodiac, Alaska, P.O.B. 1234.

'Georgia Mae Summers of the age of over 21, 6154 Evans Avenue, Chicago 37, Illinois.

'Marquita Brown of the age of over 21, 5217 North Kenneth, Chicago 30, Illinois.

'Caridad Summers of the age of over 21, 64 Edgecomb, New York 20, New York.

'4. That (there) has been no administration upon the estate of said decedent, Ben W. Weir.

'The premises considered, petitioner prays that your Honor will assume jurisdiction in the premises and enter an appropriate order, judgment or decree of the court appointing commissioners, directing them to make a complete inventory of all the real estate and personal property of said decedent as provided by law in such cases, and that upon a hearing of this application and the report of said commissioner, that your Honor will enter an order, judgment or decree setting aside said real estate to the petitioner as the surviving widow of the decedent, Ben W. Weir, to have and to hold the title to said property absolutely in her own name and behalf, there being no minor children as heirs at law of said decedent.

'Ross Blackmon

Attorney for Petitioner

Maggie Weir

'State of Alabama Calhoun County

'Personally appeared before me the said Maggie Weir, who being by me duly sworn deposes and says that the statements contained in the foregoing petition are true.

'Given under my hand this the 25th day of July, 1946.

'Ross Blackmon

Notary Public

'Filed in Probate Court

25th day of July, 1946.

S. E. Boozer, Judge of Probate Court.'

The case most nearly in point here material is that of Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314, in which the Court held that the petition filed under section 694, supra, was not sufficient, in failing to allege that decedent resided in Washington County, Alabama, and that decedent had no minor children, or if he had any such children in not so alleging. The petition was not set out in full in the report of the case. We think it is material here to do so, and it is as follows:

'In the Probate Court of Washington County, Alabama

October 18, 1948

'In the Matter of Henry Simpson, deceased.

'To the Honorable John G. Kimbrough, Judge of the Probate Court for Washington County, Alabama.

'Your petitioner, Sallie Simpson, a resident of Washington County, Alabama, respectfully shows unto your Honor as follows:

'1. That she is the widow of Henry Simpson, who died on to wit the 10 day of December, 1941 in Washington County, Alabama; that more than sixty days has lapsed since his death; that no administration upon his estate has been granted.

'2. That the heirs and next of kin of said decedent, so far as known to your petitioner, are as follows:

'A son, J. B. Simpson, who is about twenty one years of age and whose address is 2256-E-74 Street, Cleveland, Ohio.

Levi Simpson, General Delivery, Plateau, Alabama, a son who is above twenty one years of age.

Zatic Simpson, a son, who is above twenty one years of age and whose address is General Delivery, Plateau, Alabama.

Jerome Simpson, a son, who is above twenty one years of age and whose address is Vinegar Bend, Alabama.

Willie Leroy Simpson, a son, who is above twenty one years of age and who resides at 707 North California Street, Indianapolis, Indiana.

'3. That the only real property the said decedent owned at the time of his death was the homestead upon which he and petitioner resided at the time of decedent's death (and a lot in Indianapolis, Indiana), the said homestead being described as follows:

'East Half of the Northeast Quarter of Northwest Quarter and the West Half of the Northwest Quarter of the Northeast Quarter and the West Half of the Southwest Quarter of the Northeast Quarter and Southeast Quarter of Northwest Quarter and the East Half of the Southwest Quarter of Northwest Quarter, section 33, Township 4 North, Range 4 West.

'4. That said property, real and personal, owned by decedent, at the time of his death does not exceed in value the sum of two thousand dollars or in area the 160 acres which is allowed as exempt in favor of his widow.

'Wherefore, the premises considered, petitioner prays that your Honor will appoint two commissioners to make and file a full and complete inventory and appraisement of the real and personal property, 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 encumbrance created prior to the death of the decedent, such encumbered property be valued at only the excess of its value over and above the sum of such liens or other encumbrances.

'Petitioner further prays that if such commissioners find that the real and personal property does not exceed in value or area the exemptions allowed by law in such property, that the commissioners be directed to set apart the same to your petitioner as exempt from administration, and within ten days thereafter return to the court the inventory and appraisement with a report of their actions in the premises.

'Petitioner further prays that your Honor will judicially ascertain and determine all the jurisdictional facts herein; that the real property so set apart by the commissioners is all of the property owned by the decedent at the time of his death and that your Honor will make and enter a decree vesting the title to such real property absolutely in your petitioner.

'Sallie Simpson Petitioner

'Subscribed and sworn to before me on this the 24th day of October, 1948.

'Edward P. Turner, Notary Public, Washington County, Alabama

'Filed Oct. 25, 1948 J. G. Kimbrough.'

The Simpson case in holding that the petition must allege that decedent was a resident of the county and state when he died and that it was jurisdictional had no precedent to support it for it had never been asserted before. The statute, section 694, supra, does not so provide. But that statute only fixed the venue of the proceeding to be the county in which decedent resided at the time of his death. Such residence is not one of the facts of which the probate court must be apprised by the petition, and on which the right accrues. Section 661, Title 7, Code, referred to in the Simpson case, does not mention residence of decedent in the county, but provides for an exemption right out of...