Simpson v. Simpson, 1 Div. 392

• Decision Date: 12 October 1950
• Docket Number: 1 Div. 392
• Citation: 49 So.2d 314,254 Ala. 648
• Parties: SIMPSON et al. v. SIMPSON.
• Court: Alabama Supreme Court

Page 314

49 So.2d 314

254 Ala. 648

SIMPSON et al. v. SIMPSON.

1 Div. 392.

Supreme Court of Alabama.

Oct. 12, 1950.

Rehearing Denied Dec. 14, 1950.

Wm. G. Lindsey, of Chatom, for appellants.

Granade & Granade, of Chatom, for appellee.

BROWN, Justice.

This is a proceeding instituted by Sallie Simpson, a resident of Washington County, Alabama, in the Probate Court of said county on October 4, 1948, under the provisions of § 694, Title 7, Code of 1940, as amended, to have the homestead occupied by petitioner and her husband Henry J. Simpson, deceased, up until the time of his death on December 10, 1941, set apart as exempt to her as provided by said §§ 663-697, Title 7, Code of 1940.

The petition follows the prescription of the statute to the effect that more than sixty days have elapsed since Simpson's death and there has been no administration on his estate, gives the names and addresses of the next of kin and heirs at law and avers that they are all sui juris, and further 'That the only real property the said decedent owned at the time of his death was the homestead upon which he and petitioner resided at the time of decedent's death (and a lot in Indianapolis, Indiana), the said homestead being described as follows:

'East half of the Northeast Quarter of Northwest Quarter and the west half of the Northwest Quarter of the Northeast Quarter and the west Half of the Southwest Quarter of the Northeast Quarter and Southeast Quarter of Northwest Quarter and the East half of the Southwest Quarter of Northwest Quarter, Section 33, Township 4, North, Range 4 West. 'That said property, real and personal, owned by decedent at the time of his death does not exceed in value the sum of Two Thousand Dollars or in area the 160 acres which is allowed as exempt in favor of his widow.'

The court appointed two commissioners to appraise the property and set apart to the widow said property, if it did not exceed in value two thousand dollars or in area 160 acres, such exemption and report to be filed with the court. The commissioners filed their report stating, 'That the only real estate owned by decedent was, so far as commissioners were able to ascertain, consist of a dwelling house and land in Washington County, Alabama, described as follows' (describing the real estate as hereinabove set out.)

The commissioners' report further stated:

'That said real property was occupied by Henry Simpson as a homestead at the time of his death, and was of less value than the sum of two thousand dollars ($2,000) and in area less than 160 acres.

'That decedent left no personal property of any value.

'Wherefore, your commissioners further report that pursuant to the mandates of the commission issued to them, and in accordance with the law in such case made and provided they do hereby set apart the above described real estate to Sallie Simpson the widow of the decedent Henry Simpson as exempt from administration and the payments of debts. * * *.'

The report of the commissioners was received by the court and filed November 20, 1948, and ordered to lie over until December 20th, 1948, for exception and notice thereof issued to all the adult heirs who appeared and filed exceptions on December 9, 1948, alleging, in substance and legal effect that the homestead property was of the value of $3,000; that the commissioners were not qualified to act; that they were not disinterested persons; that the commissioners did not appraise the property and state its value; that said exemptions should not be allowed because the widow 'entered into or continued in possession and use of all of the land * * * under an agreement with the heirs and next of kin of deceased Henry Simpson * * * that the said land should come to them at her death.'

The probate court after hearing the testimony of fifteen witnesses given ore tenus entered a final decree overruling said exceptions to the report of the commissioners and entered the following decree.

'The Court is of the opinion that a preponderance of the testimony, after having heard the witnesses testify orally, is to the effect that the lands hereinafter described were at the time of the death of the said Henry Simpson worth less than $2,000.

'It is, therefore, ordered, adjudged and decreed by the Court:

'1. That the East Half of the Northeast Quarter of Northwest Quarter and the west half of the Northwest Quarter of the Northeast Quarter and the West Half of the Southwest Quarter of the Northeast Quarter and Southeast Quarter of Northwest Quarter and the East half of the Southwest Quarter of Northwest Quarter, section 33, Township 4 North, Range 4 West, Washington County, Alabama be, and the same hereby is, set aside in fee simple to Sallie Simpson, the widow of Henry Simpson, deceased, as her homestead, and,

'2. That the costs of this proceeding be, and the same hereby are taxed against the Petitioner, Sallie Simpson, for which execution shall issue.'

The petition filed by the widow does not allege that the decedent at the time of his death resided in Washington County, Alabama, nor does it allege that the property was situated in said county and that the decedent left no minor children.

Section 663, Title 7, Code of 1940 provides: 'When the homestead...