Jones v. Hubbard

• Decision Date: 26 October 1922
• Docket Number: 2 Div. 794.
• Parties: JONES v. HUBBARD.
• Court: Alabama Supreme Court

94 So. 167

208 Ala. 269

JONES v. HUBBARD.

2 Div. 794.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Greene County; R.I. Jones, Judge.

Bill by Laura Jones against Catherine Hubbard, as administratrix of the estate of John Hubbard, deceased, to vacate a decree of the probate court. From a decree dismissing the bill complainant appeals. Affirmed.

Edward De Graffenried, of Tuscaloosa, Hawkins & Hildreth, of Eutaw and R. B. Evins, of Greensboro, for appellant.

Harwood McKinley, McQueen & Aldridge, of Eutaw, for appellee.

THOMAS J.

The bill sought to vacate a decree of the probate court setting aside homestead and exemptions to the widow of deceased. Copies of the proceeding and decree of the probate court relating to the setting aside of the widow's homestead and personal exemptions are exhibited with the bill and on the pleading the decree of the court held not subject to collateral attack. Edmondson v. Jones, 204 Ala. 133 85 So. 799; Douglas v. Bishop, 201 Ala. 226, 77 So. 752; Miller v. First Nat. Bank, 194 Ala. 477, 69 So. 916; Hendley v. Chabert, 189 Ala. 258, 65 So. 993; Singo v. Fritz, 165 Ala. 658, 51 So. 867; Moore v. McLure, 124 Ala. 120, 27 So. 499; Friedman v. Shamblin, 117 Ala. 454, 23 So. 821; Waring v. Lewis, 53 Ala. 615.

In Douglas v. Bishop, supra, is contained the observation that the statute providing for no notice to the next of kin in probate proceedings for homestead allotments and setting aside exemptions from estates of decedents is a matter to be addressed to the Legislature and not to the courts (Moore v. McLure, supra); that such proceedings, as setting apart a homestead to the wife, although no notice was given to the next of kin was binding, when consummated by appropriate decrees not sought to be reviewed by appeal, unless the same can be successfully attacked for fraud; and that such a decree will not be set aside for fraud in a "collateral proceeding," because the widow's affidavit was false as to the amount of land of the deceased, as the fraud necessary to set aside a decree of a court of competent jurisdiction must be such as has relation to extrinsic matters, and not to a fraud in the matter in which the decree was rendered. Hogan v. Scott, 186 Ala. 310, 65 So. 209; De Soto, etc., Co. v. Hill, 188 Ala. 667, 65 So. 988; s. c., 194 Ala. 537, 69 So. 948.

In the matter of setting aside the widow's homestead and exemptions, the probate court did acquire jurisdiction, and the decree sought to be attacked in the instant case was final and conclusive as to the questions necessary for the probate court to determine, viz: (a) Whether John Hubbard, at the time of his death, owned the real and personal property involved in this suit; (b) whether the lands were all of the lands which he owned at the time of his death, and if so, whether they exceeded either in value or area the constitutional limit of a home stead; (c) whether the personalty of which he died seized and possessed was in value more than $1,000; (d) whether Catherine Hubbard was in fact his widow; and (e) whether said decedent left surviving him any minor child or children. These questions were directly presented for judicial determination, and finally decided on the proceeding, and by the decree of the probate court exhibited to complainant's bill.

Aside from the foregoing, the cause was tried before the court on pleading and proof and testimony taken orally before the judge. On final hearing it was decreed that complainant was not entitled to the relief prayed, and the bill was dismissed. There was a conflict in the testimony, on the one hand, as to the age of the plaintiff at the death of her father, that being the time and law applicable (Long v....