Strickland v. Hinson

• Citation: 213 Ala. 401,104 So. 766
• Decision Date: 07 May 1925
• Docket Number: 4 Div. 162
• Parties: STRICKLAND et al. v. HINSON.
• Court: Alabama Supreme Court

104 So. 766

213 Ala. 401

STRICKLAND et al. v. HINSON.

4 Div. 162

Supreme Court of Alabama

May 7, 1925

Rehearing Denied June 25, 1925

Appeal from Probate Court, Geneva County; D.G. Roach, Judge.

Petition by Elizabeth Hinson to have property set apart to her as the widow of J.R. Hinson, deceased, with contest by Mrs. C.A Strickland and others. From a decree for petitioner contestants appeal. Reversed and rendered.

Miller Somerville, and Gardner, JJ., dissenting.

E.C Boswell, of Geneva, for appellants.

Mulkey & Mulkey, of Geneva, for appellee.

PER CURIAM.

This is an application to the probate court by Elizabeth Hinson, widow of J.R. Hinson under the statute (section 4224, Code 1907), to have the real estate of her deceased husband, as therein described, and to which he died seized and possessed, set apart to and the title to it vested in her absolutely, on the ground that this real estate was all that he owned at the time of his death, and did not exceed in area or in value the exemptions allowed her as the widow in such property. She further alleges she was his wife at the time of his death, and he left no minor children.

Three commissioners were appointed by the judge of probate to make an inventory and appraisement of his property, and reported to the court in writing, under oath, that there was "no personal property," and that the land described in the petition contained, in the aggregate, 88 acres; that its value at the time of the death of J.R. Hinson was $1,760, and was all the real estate owned by him at the time of his death, and the said commissioners set it apart to the widow of decedent as exempt from administration. Mrs. C.A. Strickland and others, heirs of decedent, filed exceptions to this report of the commissioners, and on the hearing, on the pleading and proof, the court rendered decree in favor of petitioner, window of decedent, and held the property described in the petition was all the real estate owned by the decedent at the time of his death, and it did not exceed in area 160 acres, and was worth less than $2,000, confirmed the report of the commissioners, and directed the title to this land to vest absolutely in fee in Elizabeth Hinson, widow of decedent. This appeal is prosecuted by appellants from that decree.

The decedent died in Geneva county on January 8, 1914. The original petition was filed by his widow in the probate court of the county on November 5, 1914, and the court, without appointing commissioners to appraise and report on the property of decedent, heard the petition and the testimony offered, and set apart the 88 acres of land here involved to the widow as exempt from administration, and decreed that title to it vested in her absolutely. This decree was entered on January 14, 1915. The widow of decedent on February 4, 1924, filed a petition in this probate court, verified by oath, referring therein to the original petition filed November 5, 1914, and making it a part thereof, and requested the court to vacate and annul the decree of January 14, 1915, because the decree was void, no commissioners having been appointed to appraise, inventory, and value the property of the decedent, as the statute requires; and prayed that appraisers be appointed and required to ascertain and report the value of said land as of the date of the death of her husband, together with the acreage owned by him at the time of his death. The court entered a decree vacating the decree of January 14, 1915, and appointed three commissioners to inventory and appraise the real and personal property of the decedent, describing the property, stating the value of each item and parcel thereof. The three commissioners, as hereinbefore stated, made their report in writing and under oath, and exceptions to it were filed by the appellants.

The contestants in their exceptions to the report of the commissioners allege, among other things, that it should not be confirmed and the property set apart to and the title to it vested in the petitioner, the widow of decedent, because she now has no title to and no interest in this property; after her husband's death she sold and conveyed on April 21, 1915, to Mrs. T.L. Leddon a part of this land, and on December 3, 1915, she sold and conveyed the balance of this land to Mrs. Martha E. Bush.

The evidence without conflict shows that, after the death of her husband, the petitioner by warranty deed, with general covenants, sold and conveyed on April 21, 1915, to Mrs. T.L. Leddon 38 acres of this land for a recited consideration of $500 in hand paid, and on December 3, 1915, by warranty deed, with general covenants, the petitioner sold and conveyed to Mrs. Martha E. Bush the balance, 50 acres of this land for a recited consideration of $1 and "love and affection." It appears the grantees in these two deeds were daughters of petitioner. Mrs. Bush afterwards sold and conveyed this 50-acre tract to Oscar Leddon. Since these sales and conveyances of the land were made, the petitioner, widow of decedent, has no title to nor interest in this property, and she cannot maintain this proceeding. Thompson v. Miller, 204 Ala. 502, 85 So. 689.

The trial court should have sustained the exceptions of appellants to the report of the commissioners, and dismissed the petition of appellee; and a decree to that effect will be entered here.

The decree of the probate court is reversed, and one will be rendered here in accordance with this opinion.

Reversed and rendered.

ANDERSON, C.J., and SAYRE, THOMAS, and BOULDIN, JJ., concur.

SOMERVILLE GARDNER, and MILLER, JJ. dissent.

MILLER, J. (dissenting).

The appellants insist petitioner has no interest now in this 88 acres of land, and cannot institute and maintain this proceeding to establish her title, that the report of the commissioners should have been disallowed and the petition dismissed under authority of Thompson v. Miller, 204 Ala. 502, 85 So. 689. This court so held, but we cannot concur in that conclusion. The facts in that case are strikingly different from the facts in this case. There, the widow sold the homestead several years before filing the petition, and waited more than 20 years after her husband's death before instituting the proceeding. Here, the widow filed the original petition within a year after her husband's death, and the sales of the property were not made until the court by decree, without fault on her part and without appointing commissioners to appraise the property, decreed she owned under the facts the title to the land absolutely. There are other facts differentiating this case from the Thompson Case, supra.

The case of Thompson v. Miller, supra, is clearly wrong in holding, if the widow sells the land after her...