Nathanson v. Key, 5 Div. 902

• Decision Date: 10 December 1970
• Docket Number: 5 Div. 902
• Citation: 286 Ala. 486,242 So.2d 389
• Parties: Allan NATHANSON, as Guardian ad Litem of any Unknown Heirs of Tom Key, Deceased, Who May be Minors or Insane and Whose Addresses are Unknown, et al., v. Mary KEY.
• Court: Alabama Supreme Court

Page 389

242 So.2d 389

286 Ala. 486

Allan NATHANSON, as Guardian ad Litem of any Unknown Heirs of Tom Key, Deceased, Who May be Minors or Insane and Whose Addresses are Unknown, et al., v. Mary KEY.

5 Div. 902.

Supreme Court of Alabama.

Dec. 10, 1970.

As Amended Jan. 6, 1971.

Russell, Raymon & Russell, Tuskegee, for appellant.

No brief for appellee.

BLOODWORTH, Justice.

This appeal is from a probate court decree setting apart a homestead to appellee, Mary Key, the widow of John Key, deceased, pursuant to Title, 7, § 694, Code of Alabama 1940.

Appellant, as guardian and item for any unknown heirs of John Key and six other named deceased persons, contends that the probate court decree is erroneous since it failed to find as a necessary jurisdictional fact that the homestead was all of the real property owned in the State of Alabama by John Key at the time of his death. We agree that such finding is jurisdictional, and we hold that the decree of the probate court is void on account of such omission.

The amended petition filed by the widow alleged that John Key died intestate August 18, 1960, and that he was survived by no minor children or descendants of children. It is alleged that the heirs of John Key are the 'unknown heirs' of six named deceased individuals whose relationships to John Key are not shown. ¹ The widow, in the petition (filed eight years after the deceased's death), seeks to have a homestead set apart to her in fee simple. Before amendment, the petition contained a description of a tract of land of approximately 47 1/2 acres which was alleged to have been All of the real estate owned in the State by John Key at his death. Commissioners were appointed who set apart the homestead to petitioner. Before any decree of the probate court was entered, the widow amended her petition averring that at the time of his death John Key left two tracts of land which were alleged to be All of the real property owned by him at his death. The description of the first tract was the same as the parcel of land described in her original petition. The second tract was described and alleged to consist of approximately 26 acres. The same commissioners were again appointed and they found that the two tracts of land described in the amended petition constituted All of the real property owned by John Key at the time of his death and that the land did not exceed $6,000 in value and 160 acres in area. It was set apart to the widow as a homestead. A hearing was set to hear the commissioners' report.

The guardian ad litem filed exceptions to the commissioners' report alleging: that only the first tract was the homestead of John Key and the second tract was not; that the widow had conveyed various portions of both parcels of land to various individuals subsequent to the death of John Key; and, that she no longer had an interest in all of the real property owned by her husband at the time of his death.

The widow then again amended her petition deleting the description of the second parcel of land and adding to the description of the first parcel the following clause: 'less and except therefrom any and all property heretofore conveyed.' The commissioners then amended their report to be in consonance with the widow's last amended petition. The guardian ad litem refiled his exceptions to the commissioners' report. At the hearing, the guardian ad litem offered proof that the widow had conveyed 28 parcels of the lands owned by her husband to third parties.

After the hearing, the probate court entered a final decree (inter alia): overruling the exceptions; finding the property to be less in value and area than the exemption; and awarding the widow fee simple title in the first parcel of land 'less and except therefrom any and all property heretofore conveyed' as her homestead. The guardian ad litem thereupon gave notice of appeal.

There are certain well accepted principles governing this case. The rights of a widow under our homestead statutes are fixed by the death of her husband. If the real property involved is occupied as a homestead at the time of the husband's death, is all the real property left by him in the State at that time, and does not exceed in area or value the exemption allowed by law, ² the widow acquires a life estate in the land without any action on her part. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893; Cox v. McLemore, 236 Ala. 559, 183 So. 860.

In a judicial proceeding to have the homestead set aside to the widow in fee, the court must find that the property (sought to be set aside as homestead) was All the land owned by the deceased in the State at the time of his death and that it did not exceed $6,000 in value ³ and 160 acres in area.

We said in Simpson v. Simpson, 254 Ala. 648, 651, 49 So.2d 314, 317:

'The decree does not judicially ascertain and adjudge that the lands, the subject-matter of the proceedings, are all the lands owned by said decedent at the time of his death...