Miller v. First Nat. Bank of Birmingham

• Citation: 194 Ala. 477,69 So. 916
• Decision Date: 21 October 1915
• Docket Number: 71
• Parties: MILLER et al. v. FIRST NAT. BANK OF BIRMINGHAM et al.
• Court: Alabama Supreme Court

69 So. 916

194 Ala. 477

MILLER et al. v. FIRST NAT. BANK OF BIRMINGHAM et al.

No. 71

Supreme Court of Alabama

October 21, 1915

Appeal from Circuit Court, Jefferson County; C.B. Smith, Judge.

Bill by Maggie Miller and another against the First National Bank of Birmingham and another to require the payment into court of certain money, and to enjoin its payment to one Williams, or the personal representative of Jennie Forrest, as well as to enjoin said parties from collecting said money. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

One Stephen Forrest died in 1910, leaving a widow and several children by a former marriage, who were of age. In 1912 the widow, Jennie Forrest, filed her petition in the probate court of Jefferson county, showing the date of her husband's death and his local residence, that there had been no administration granted on his estate, and that he left no minor child or children. She also averred:

"That the said Stephen Forrest owned at the time of his death real and personal property which does not exceed in amount and value the exemptions allowed by law in favor of the undersigned applicant, as follows, to wit: Lot No. 33 More and Mell's survey, in the S. 1/2 of N.E. 1/4 Enslen's Plat, except No. 130 feet, S. 15, T. 17, R. 3 valued at $200.00."

The prayer was for the appointment of commissioners to inventory and appraise decedent's property and that it be set aside as the property of petitioner. Commissioners were appointed and properly directed, and they reported in due course that the lot described in the petition was the only property, real or personal, owned by decedent at the time of his death valued at $200, and that, as the whole property did not exceed in area or value the exemptions allowed by law, they had set apart as exempt to Jennie Forrest, the widow, all the property set out and described. After setting out the prior proceedings, the decree of the probate court thereon was as follows:

"It appearing to the court that no exceptions or objections have been filed to said report, and that said 30 days for such exceptions and objections have expired since the filing of said report, that said real estate hereinafter described was all of the real estate owned and left by said decedent at the time of his death, and that said real estate is less in value and area than the amount of the exemptions allowed by law to the widow and minor children, or either of them, and it further appearing to the court that said decedent left no minor children, and that said commissioners did set apart the real estate to said Jennie Forrest, widow of said Stephen Forrest, deceased, as exempt to her, as provided in article 4, c. 86, of the Code of Alabama, 1907, it is therefore ordered, adjudged, and decreed," etc.

Some time after this allotment of homesteads the homestead building was destroyed by fire, and the widow collected the amount of the policy, in the sum of $500, which had been taken out on the building by her husband in his lifetime. The bill is filed by the heirs at law of Stephen Forrest against the administrator of the widow, Jennie Forrest, now deceased, to enforce their property rights in said fund of $500, $450 of which is shown to be in the hands of said administrators. The theory of the bill is that the decree allotting the homestead to Jennie Forrest was a nullity, or else could only have vested in her a life estate, and that, the insurance money standing in the place of the house, the heirs at law of Jennie Forrest are entitled thereto. The evidence shows that Stephen Forrest died in possession of and claiming another small tract of land beside the homestead in question.

Harsh &...