Hardy v. Morgan, 7 Div. 567.

• Decision Date: 08 June 1939
• Docket Number: 7 Div. 567.
• Citation: 189 So. 878,238 Ala. 251
• Parties: HARDY ET AL. v. MORGAN.
• Court: Alabama Supreme Court

189 So. 878

238 Ala. 251

HARDY ET AL. v. MORGAN.

7 Div. 567.

Supreme Court of Alabama

June 8, 1939

Rehearing Denied June 29, 1939.

Appeal from Probate Court, Cherokee County; T. R. Snead, Judge.

Proceeding by Carrie Morgan to have exemptions set apart to her as the widow of George W. Morgan, deceased, contested by Maggie Hardy and others. From a decree for petitioner, contestants appeal.

Reversed rendered and remanded with directions.

Savage & Savage, of Centre, for appellants.

Irby A Keener and Reed & Reed, all of Centre, for appellee.

KNIGHT Justice.

This cause comes before us on appeal from a decree of the Probate Court of Cherokee County, under the provisions of Section 7939 of the Code.

The appellee is the widow of George W. Morgan, deceased, and as such widow she filed her application in the Probate Court of Cherokee County--the county of the residence of the decedent at the time of his death--for the appointment of commissioners to inventory and appraise the personal and real property of the decedent and to set apart to her as such widow her exemptions therein. This petition was filed under the provisions of Sections 7948 et seq. of the Code, and its averments were sufficient to quicken into exercise the jurisdiction of the probate court conferred by said Section 7948 of the Code. That is to say, the petition avers that the said George W. Morgan departed this life in Cherokee County Alabama, on or about June 17, 1938, leaving petitioner as his surviving widow; that he left no minor children surviving him; that the property, real and personal, owned by the decedent at the time of his death did not exceed in amount and value the exemptions allowed by law in favor of his widow and minor children, and that there had been no administration upon his estate. The petition also gives the names, ages and place of residence of the heirs, and avers that all of them are over the age of twenty-one years. This petition was filed on the 26th day of October, 1938, being more than sixty days after the death of the said George W. Morgan, and was duly verified by oath of the applicant.

On the filing of the petition the court appointed two commissioners to make inventory and appraisement of the real and personal property of decedent.

The commissioners appointed made their report to the court on October 28, 1938. As regards the real property this report recites:

"We also report that we have set off and allotted the following property, which was the homestead of the decedent, towit:

"The north half of the Northwest Quarter of Section 15, and the Southeast Quarter of the Southwest Quarter of Section 10, all in Township 11, South of Range 10, East, which said property contains 120 acres, and valued as a whole at $1800.00 Dollars, and which said property was encumbered by a mortgage to the Federal Land Bank of New Orleans, in the sum of $624.00, and which said mortgage was made and lien created prior to the death of the said George W. Morgan, deceased, and which said lands hereinabove described constituted all the lands owned by the said George W. Morgan at the time of his death.

"We further report that we have set off and allotted all the above described lands to Carrie Morgan, the widow of George W. Morgan, deceased, there being no minor children, and said lands being less

than 160 acres in area and less than $2000.00 in value; and being all the lands owned by the said George W. Morgan at the time of his death.

"All of which is respectfully submitted."

This report was set down for hearing on November 30th, 1938. Due notice of the filing of this report, and of the day set for hearing the same, was given the heirs at law and next of kin of the decedent. Exceptions were duly filed by the heirs at law to said report upon a number of grounds, and among the grounds was one taking the point that "The lands described are of value far in...