Singo v. Fritz

• Decision Date: 20 January 1910
• Citation: 165 Ala. 658,51 So. 867
• Parties: SINGO v. FRITZ.
• Court: Alabama Supreme Court

51 So. 867

165 Ala. 658

SINGO v. FRITZ.

Supreme Court of Alabama

January 20, 1910

Rehearing Denied Feb. 26, 1910.

Appeal from Probate Court, Montgomery County; J. B. Gaston, Judge.

Petition by Jury Fritz, minor, by next friend, for the vacation of a decree rendered on the petition of Dorcas Singo, as the widow of a deceased, to set apart to her the property of the deceased. From a decree granting relief, Dorcas Singo appeals. Reversed and rendered.

J Winter Thornton and Goodwyn & McIntyre, for appellant.

Gunter & Gunter, for appellee.

SIMPSON J.

On the 22d day of January, 1906, Dorcas Singo (the appellant) filed a petition in the probate court, alleging the death of George Singo on November 20, 1905, that his real estate consisted of a small tract of land in said county and a small amount of personalty, that she was the widow of said Singo, etc., and praying that the said property be set apart to her under the exemption laws of Alabama. Commissioners were appointed according to law, who made their report, setting it apart making a complete inventory, showing that said property was all of the property owned by said Singo. Said report was ordered to lie over for 30 days, for exceptions, by decree of February 1, 1906.

On February 20, 1906, Judy McGhee, Ellen Shepard, and Willie Singo, claiming to be the beneficiaries under the will of said George Singo, filed exceptions to said report, alleging, among other matters, that said Dorcas Singo was not the widow of said George Singo. On March 13, 1906, an amendment to the exceptions was filed by Judy McGhee, as executor, "and all the other heirs at law of said decedent," setting forth specifically that said Dorcas was the wife of another man. After several demurrers and motions, and action thereon, on May 18, 1907, a decree was rendered by said court, reciting that it appeared to the court that said commissioners had proceeded according to law, also "that said Dorcas Singo was his wife (or widow) and a bona fide resident of said state and county," the exceptions were overruled, and the property was set apart to said Dorcas Singo, in accordance with the prayer of the petition.

On May 1, 1907, Judy McGhee, claiming to be "the only surviving child, and also the only heir at law, of the said George Singo," filed a petition, praying that the former decree be vacated and annulled, stating that she was "one of the parties interested in and contesting the proceedings filed January 22, 1907," and on November 15, 1907, the court decreed that the former decree be "set aside, rescinded, vacated, annulled, and held for naught." An appeal was taken from said decree to this court, and this court held that the first decree was valid, and the decree appealed from was void. Accordingly the appeal was dismissed. Singo v. McGhee, 49 So. 290, 292.

On April 8, 1909, Jury Fritz, a minor, by her next friend (being her mother), Ellen Shepard, filed a petition in said court, alleging that the will of said George Singo was probated on June 26, 1908, and that by said will all the real estate of said George Singo (40 acres) was given to petitioner; that she had no notice of the proceedings by which the property was set apart; that one Mark D. Brainard was employed to represent the heirs of George Singo in the former proceedings; and, although he knew that Dorcas Singo was not the widow of said George Singo, he "fraudulently betrayed the interest of his client, and allowed the decree to go for said Dorcas." The petition prayed that the former decree be vacated, "on the ground that the same was ill-advised and void as to petitioner," and on July 17, 1909, the said court rendered another decree, vacating and setting aside the first decree.

The former decision of this court in this case was based upon the familiar principle that a court has no power to vacate a decree rendered at a previous term, unless said decree was, not merely voidable, but absolutely void. Baker v. Barclift, 76 Ala. 414. The case of Williamson v. Berry, 8 How. 495, 12 L.Ed. 1170, is based upon the principle that the chancellor was not authorized, under the act in question, to render the decree, and it was therefore void. The case of Thompson v. Whitman, 18 Wall. 457, 21 L.Ed. 897, is upon the effect to be given to a foreign judgment (rendered in another state), and it was held that the jurisdiction of the court could be inquired into. The case of Mutual Benefit Life Ins. Co. v. Tisdale, 91 U.S. 238, 23 L.Ed. 314, was a suit brought by a woman on a policy of insurance on the life of her husband, and the question at issue was whether or not the husband was dead, and the decision of the court was that, in this collateral proceeding, the mere fact that letters of administration had been granted on the estate of said husband did not prove the fact of his death; the court saying: "The probate court has never adjudicated that Tisdale is dead (page 243 of 91 U.S. )," and the court holding that "the letters are conclusive evidence of the probate of the will. It cannot be avoided collaterally by showing that it is a forgery, or that there is a subsequent will (page 243 of 91 U.S. )."

On the question of the issue of letters of administration on the estate of a living man, various courts have decided differently; but the weight of authority is that they are void, because the court had no jurisdiction to act until the man was dead. This question was considered at length by the Supreme Court of the United States in the case of Scott v. McNeal, 154 U.S. 34, 14 S.Ct. 1108, 38 L.Ed. 896; the court, quoting from the Tisdale Case, supra, that "the adjudication of that court is not upon the question whether he is living or dead, but only upon the question whether and to whom letters of administration shall issue (page 47 of 154 U.S., page 1113 of 14 S.Ct. )," holding that as to him the proceeding was "res inter alios acta," and was depriving him of his property without due process of law. The court also quotes from the leading case of Griffith v. Frazier, 8 Cranch, 9, 23, 3 L.Ed 471, to the effect that if, in a case of intestacy, letters should be granted to one not entitled by law, "still the act is binding until annulled by the competent authority, because he had power to grant letters of administration in the case," but when the man is...