Newell v. Johns

• Citation: 128 Ala. 584,29 So. 609
• Parties: NEWELL ET AL. v. JOHNS.
• Decision Date: 17 January 1901
• Court: Supreme Court of Alabama

29 So. 609

128 Ala. 584

NEWELL ET AL. v. JOHNS.

Supreme Court of Alabama

January 17, 1901

Appeal from probate court, Cleburne county; A. A. Hurst, Judge.

Petition by T. J. Johns, administrator of J. R. Newell, to sell real estate, and E. R. Newell and others file objections. From a judgment granting the petition, the defendants appeal. Reversed.

On December 12, 1898, the appellee, T. J. Johns, as administrator of the estate of J. R. Newell, deceased, filed his petition in the probate court of Cleburne county, asking for the sale of certain lands therein described, belonging to the estate of said J. R. Newell, deceased, for the payment of decedent's debts, on the ground that the personal property belonging to said estate was insufficient for such purposes. It was alleged in said petition that J. R. Newell left surviving him a widow, E. R. Newell, and three children all of whom were over the age of 21 years. The widow, E. R Newell, filed in the probate court her answer in writing to the petition of the administrator. In the first paragraph of said answer she averred that she was the widow of J. R Newell, deceased; that she and her husband occupied and lived on the lands described in the petition as a homestead, and that said lands constituted the homestead of her said husband at the time of his death; that they did not exceed 160 acres in area, or $2,000 in value, and that, therefore, said lands were exempt to her as a homestead, and not subject to be assailed for payment of decedent's debts. In the second paragraph of the bill, after again averring that at the time of her husband's death she and the deceased were occupying the lands as a homestead, she further averred that her said husband died on January 11, 1895, but that letters of administration were not issued to the petitioner until January 21, 1896, more than six months from the date of the death of her husband. It was further averred in said paragraph that the intestate left no minor children, but three children who were over the age of 21 years; that on July 15, 1895, she, the said E. R. Newell, and the three adult children of the intestate executed a deed to one Sox to the lands in question; that after the execution of said deed upon being informed that she could not convey the property until the land had been set apart to her as a homestead by order of the probate court, she filed a petition in said court on July 19, 1895, and on the same day the lands were set apart to her, as the widow of the intestate, as a homestead; but it was averred that by reason of a defect in said petition the probate court had no jurisdiction to set apart said lands as a homestead. It was further averred that on July 22, 1895, she executed another deed to said lands to D. A. Sox, and that on July 22, 1895, the said D. A. Sox sold and conveyed the lands to M. A. Rhodes and Jonathan Fadley. It was also averred in the second paragraph of the answer of E. R. Newell that on and before February 12, 1894, her deceased husband owned a certain other tract of land containing 40 acres, but on said day he executed a mortgage thereon to secure a debt, and that the amount of said debt at the death of the intestate was more than the value of said land, and that the mortgage had been foreclosed; that these pieces of land constituted all of the real estate owned by the intestate at the time of his death. She then prayed that said lands described in the petition be set apart to her as a homestead for the use of said Rhodes and Fadley. In the third and fourth paragraphs of said answer the respondent denied that there were any debts owing by the decedent at the time of his death for which said lands were liable, and also denied that the decedent owned any personal property exceeding $1,000 at the time of his death. M. A. Rhodes and Jonathan Fadley, as purchasers of said land, also filed an answer to the petition, and they adopted as a part thereof the first and second paragraphs of the answer of Mrs. E. R Newell, and they denied in said answer that there was any legal reason for the sale of...