Hynes v. Underwood

• Decision Date: 14 January 1915
• Docket Number: 956
• Citation: 191 Ala. 90,67 So. 994
• Parties: HYNES et al. v. UNDERWOOD et al.
• Court: Alabama Supreme Court

67 So. 994

191 Ala. 90

HYNES et al. v. UNDERWOOD et al.

No. 956

Supreme Court of Alabama

January 14, 1915

Rehearing Denied Feb. 4. 1915

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Suit by Will Hynes and others against Paralee Underwood and others. From decree for defendants, complainants appeal. Reversed and remanded.

Nathan L. Miller and Needham A. Graham, Jr., both of Birmingham, for appellants.

Allen Bell & Sadler, of Birmingham, for appellees.

This opinion was prepared for the court by Mr. Justice DE GRAFFENRIED:

1. On the 18th day of June, 1908, letters of administration were regularly issued by the probate court of Jefferson county to Robert J. Wheeler upon the estate of Felix Hynes, deceased. On the 7th day of July, 1909, one Josephine Hynes, claiming to be the widow of said Felix Hynes, filed her petition in the probate court of said county, praying that certain real estate be set apart to her as a homestead. The petition alleges that no letters of administration had been granted upon the estate of said Felix Hynes, and that the said lands were all of the lands that belonged to said Felix Hynes, and that they were worth not exceeding $2,000, and the petition showed that they consisted of an undivided interest in a lot in the city of Birmingham.

At the time of the filing of this petition the records of the probate court of Jefferson county show that Robert J. Wheeler was then the administrator of the said estate of Felix Hynes and that he was acting as such, and they also show that, when Robert J. Wheeler filed his petition praying for letters of administration upon said estate, he stated that the lot which is described in the petition of Josephine Hynes was all of the property which belonged to the said Felix Hynes at the time of his death. In other words, the records of the probate court of Jefferson county show conclusively that the statement in the petition of said Josephine Hynes that no letters of administration upon the estate of Felix Hynes deceased, had been granted to any one is untrue. On the contrary, as we have already said, the records of said court show conclusively that when Josephine Hynes filed said petition, letters of administration upon the estate of Felix Hynes, deceased had been granted to said Robert J. Wheeler and that the administration of said estate was then pending in said court.

2. The petition of Josephine Hynes for allotment of homestead was filed under section 4224 of the Code. This section cannot be appealed to when letters of administration have been granted upon an estate. The probate court has no jurisdiction to set apart a homestead under the provisions of said section when letters of administration have been granted upon an estate and, if it does...