Singo v. McGehee

• Decision Date: 06 February 1909
• Citation: 49 So. 290,160 Ala. 245
• Parties: SINGO v. MCGEHEE.
• Court: Alabama Supreme Court

49 So. 290

160 Ala. 245

SINGO v. MCGEHEE.

Supreme Court of Alabama

February 6, 1909

On Rehearing, April 6, 1909.

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

Petition by Dorcas Singo against Judy McGehee to have certain real estate set apart as exempt. From decree setting aside a former decree for petitioner, she appeals. Appeal dismissed on rehearing.

Anderson Denson, and Mayfield, JJ., dissenting.

On the 2d day of January, 1906, Dorcas Singo filed in the office of the judge of probate of Montgomery county a petition asking that a homestead be set aside to her out of certain property owned by her alleged husband, George Singo. On that day an order was made by the judge appointing two commissioners to set aside the homestead. On February 1st a commission was filed out of court, together with an inventory appraising the property of the deceased, which showed that he had real estate of less value than the exemptions and about $116 of personal property. When this report came in an order was made to the effect that the reports should lie over for 30 days and on the 20th of February another order was made setting a day to hear the exceptions to the report, and another order on March 12th to hear demurrers. On May 18, 1907, a final decree was rendered by the judge setting apart to Dorcas Singo certain real and personal property as stated in the decree. On November 15, 1907, the judge entered another order, setting aside the decree of May 18th, and from this order this appeal is prosecuted.

The petition alleges that Dorcas Singo is the widow of George Singo, deceased, who died on the 20th of November, 1905, and that said George Singo owned real and personal property located in this state and county at the date of his death which did not exceed in amount or value the exemptions allowed the widow, and that he left no minor child or children, and that no administration had been granted on his said estate. The petition then seems to describe the land left at the time of his death, setting the same out by metes and bounds, and also the personal property owned by him at the time of his death. It is also alleged that a certain person named therein claims a mortgage in a certain amount upon a portion of said property. Petition was verified, and contained an appropriate prayer for relief. Judy McGehee and others filed exceptions to the report of the commissioners.

Goodwyn & Melntyre, for appellant.

John V Smith and W. W. Pearson, for appellee.

ANDERSON J.

In the case of Cotton v. Holloway, 96 Ala. 544, 12 So. 172, the court, in discussing jurisdictional averments in petitions in the probate court, through Thorington, J., very properly said: "This jurisdiction, as has been declared, is derived from the statute. It is special and limited, and only attaches when a petition is filed containing the necessary allegations." It is true, as was also stated in this case, that, when the jurisdiction has attached by filing proper petition, any subsequent errors or irregularities are unavailing on collateral attack, with the single exception prescribed by the statute. Clearly, the court did not hold, or intend to hold, that the omission of jurisdictional averments in the petition were mere irregularities, unavailable upon attack, and the opinion is guarded in addressing itself to errors arising after the filing of a "proper petition." And the real point in the case was whether or not the facts omitted from the petition were jurisdictional, and it no-where holds that, if jurisdictional, the omission from the petition could be supplied by subsequent recitals in the record. Section 2097 of the Code of 1896, which provides for setting apart exemptions before administration, said: "When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemptions allowed in favor of his widow and minor children, or either, and no administration is granted upon his estate within 60 days after his death, the probate court in the county in which he resided at the time of his death, upon the application of the widow, or if there be no widow, or she does not act, upon the application of a suitable person, who shall be appointed by the judge of probate as the next friend of such minor child or children, verified by oath, and setting forth such facts, must appoint two commissioners," etc. (Italics supplied.) The application must be verified, and must "set forth such facts." What facts? The facts set out in the statute, as a matter of course: First, that the real and personal property owned by the decedent at the time of his death does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children; second, that no administration was granted upon his estate within 60 days after his death; and, third, that he resided in the county in which the application is made at the time of his death.

Under the terms of the statute the application can only be considered by the probate judge of the county in which the decedent resided at the time of his death. Therefore the averment, in the application, that the decedent resided at the time of his death in the county of which the person to whom same is addressed is the probate judge, is absolutely essential to give said officer jurisdiction to hear and determine the said application. The application in question no-where avers, that George Singo was a resident of Montgomery county at the time of his death. Nor did it aver that the property owned by him at the time of his death did not exceed in amount and value the exemptions allowed his widow, etc. It did aver that he owned certain property setting it out, and that it was worth less than the exemption, but did not say that it was all that he owned. He may have owned this property, and its value may have been less than the exemption. Yet from the wording of the petition he may have owned other property in value greatly in excess of the exemption. It did not aver that he owned this property and no other, or that this was all the property he owned at the time of his death. The probate court having rendered the first decree upon a petition which did not give it jurisdiction, said decree was void, and it had the inherent power, upon proper motion, to vacate same. Chamblee v. Cole, 128 Ala. 649, 30 So. 630; Brooks v. John, 119...