Williams v. Overcast, 8 Div. 549.

• Court: Supreme Court of Alabama
• Citation: 155 So. 543,229 Ala. 119
• Docket Number: 8 Div. 549.
• Parties: WILLIAMS v. OVERCAST et al.
• Decision Date: 26 April 1934

155 So. 543

229 Ala. 119

WILLIAMS v. OVERCAST et al.

8 Div. 549.

Supreme Court of Alabama

April 26, 1934

Rehearing Denied June 28, 1934.

Appeal from Circuit Court, Colbert County; Ernest Lacy, Judge.

Bill to sell lands for division by L. A. Williams against Charlie Overcast and others. From the decree, complainant appeals.

Reversed and remanded.

THOMAS BROWN, and KNIGHT, JJ., dissenting in part.

John E Deloney, Jr., of Tuscumbia, for appellant.

W. H Mitchell, of Florence, and Kirk & Rather, of Tuscumbia, for appellees.

THOMAS Justice.

The bill sought a sale of lands for division among the alleged joint owners. It was amended and there was a final decree on the pleadings and proof.

The question of a joint tenancy, and the extent thereof, depends upon the validity of the decree of the probate court setting aside the homestead to the widow and minor child of W. B. Overcast, deceased.

The petition was duly verified by the widow to the probate court of the county in which decedent lived at the time of his death in 1914, leaving a homestead consisting of 160 acres and of less than $2,000 in value, which constituted his homestead and upon which he resided at his death; and avers that this land constituted all the land owned by decedent at the time of his death; that he left surviving him, his widow (petitioner) and Charlie Overcast, who, at the time of the death of W. B. Overcast, was a minor, but who is now over the age of twenty-one years; that "decedent left no other minor children"; that "more than sixty days haxe expired since the death of W. B. Overcast and no administration has been had upon this estate"; and "prays that such action be taken and orders made and proceedings had by this court as may be necessary to set aside the above described property to petitioner and Charlie Overcast as the widow and minor child of W. B. Overcast, at the time of his death to the end that said property shall vest absolutely in them."

The probate judge duly appointed commissioners to appraise the property belonging to W. B. Overcast at the time of his death, who qualified and reported in part as follows:

"3. That decedent left a homestead described in said petition and being the N.E. 1/4 of Section 22, Township 4, Range 14 West, containing 160 acres, which had a value at the time of his death of less than $2,000.00 and in our opinion its value at that time was $1200.00. And this constituted all the lands owned by said decedent.

"4. That Martha J. Overcast is the widow of said decedent, and Charlie Overcast was his only minor child.

"5. That more than sixty days has elapsed since decedent's death and no administration has been had upon his estate.

"We set apart the land above described to the said Martha J. Overcast and Charlie Overcast as the widow and minor child of decedent as an exempt homestead under Sections 7948 et seq. of the 1923 Alabama Code."

The decree of the probate court confirming the report of the commissioners and setting aside the land in fee simple to Martha J. Overcast, as the widow of W. B. Overcast, and Charlie Overcast, the minor child of W. B. Overcast, was:

"On February 29, 1928, J. A. Denton and S. L. Williams, commissioners heretofore appointed by this court to appraise and inventory the real and personal property belonging to W. B. Overcast at the time of his death in the year 1914, and to set aside exemptions allowed by law to Martha J. Overcast, his widow, and Charlie Overcast who was a minor child at the time of decedent's death, having on the 29th day of February, 1928, filed their report in writing and under oath, and the same having lain on file for more than thirty days and no exceptions or objections having been made thereto, it is therefore ordered, adjudged and decreed that the same be and it is hereby approved, ratified and confirmed.

"It further appearing from the petition in this cause, report of Commissioners and other good and lawful evidence, that W. B. Overcast while a citizen of Colbert County, Alabama, departed this life in the year 1914, leaving Martha J. Overcast his widow, and Charlie Overcast his only minor child, and that he left a homestead upon which he resided at the time of his death described as the N.E. 1/4 of Section 22, Township 4, Range 14 West, which does not exceed in area one hundred sixty acres, nor did it exceed at the time of his death in value the sum of $2000.00, and that said land was all the land owned by decedent at the time of his death.

"It is therefore ordered, adjudged and decreed that said lands be and the same are hereby set aside to Martha J. Overcast as the widow of W. B. Overcast and Charlie Overcast, the minor child of W. B. Overcast, deceased, as a homestead to be exempt to them under the laws of the State of Alabama."

This action under the former statute had the effect of a selection and attaching the right of homestead exemption; and indeed it is held that the law in a proper case intervened and attached that right. Pollak v. McNeil, 100 Ala. 203, 13 So. 937; Kibbe v. Scholes, 219 Ala. 571, 577, 123 So. 61; Boutwell v. Spurlin Mercantile Co., 203 Ala. 482, 83 So. 481; Helms v. Helms,

214 Ala. 580, 108 So. 509.

The statutes of force at the date of the death of the intestate husband and father fixed the right of the widow and minor child as of that date; the evidentiary effect of the vesting of the right being sought under the statute in effect at the time of the petition, the report of the commissioners, and the decree thereon in the probate court.

It should be remarked at the outset that the instant case is a bill for division and is a collateral attack upon the proceedings in the probate court, setting aside, as it does, the homestead of W. B. Overcast to his widow, Martha J. Overcast, and minor son, Charlie Overcast; said property having been ascertained to constitute all the land owned by the decedent, to contain 160 acres, and not to exceed the sum of $2,000 in value. And it should be observed that: "'A direct attack upon a judgment is an attempt to amend, correct, reform, vacate, or enjoin the execution of the same, in a proceeding instituted for that purpose, * * * while a collateral attack is an attempt to avoid its binding force in a proceeding not instituted for one of the purposes aforesaid.' Schneider v. Sellers, 25 Tex.Civ.App. 226, 61 S.W. 541." Singo v. McGhee, 160 Ala. 245, 251, 49 So. 290, 292; Crowder v. Doe ex dem. Arnett, 193 Ala. 470, 68 So. 1005; Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am. St. Rep. 363.

It is established law that in a proceeding in the probate court like the one in this instance, or akin thereto, whenever the jurisdiction of the court has attached by the filing of a proper petition by a proper party, such proceeding cannot be collaterally assailed for subsequent errors, however irregular. Berry v. Manning, 209 Ala. 587, 96 So. 762, suit in ejectment; Douglas v. Bishop, 201 Ala. 226, 77 So. 752, for cancellation of degree of homestead; Arnett v. Bailey, 60 Ala. 435, a bill for partition of lands and decree of probate ordering sale of lands held collaterally assailed; Singo v. McGhee, 160 Ala. 245, 49 So. 290; Id., 165 Ala. 658, 51 So. 867, Petition to set aside the homestead held sufficient though not alleging the residence of precedent; Jones v. Woodstock Iron Co., 95 Ala. 551, 10 So. 635, held decree not to be assailed by heirs on the grounds that purchase money not shown paid or sale not made as directed; Conniff v. McFarlin, 178 Ala. 160, 59 So. 472, decree cannot be collaterally attacked or failure to name heirs; Craft v. Simon, 18 Ala. 625, 24 So. 380, the decree was upheld, on collateral attack, for failure of the decree to ascertain that the jurisdictional facts had been proven; Lyons v. Hamner, 84 Ala. 197, 4 So. 26, 5 Am. St. Rep. 363, ejectment.

The effect of the statute as to jurisdiction in the premises for setting apart homestead exemptions before administration is: (1) That the property in question was owned by the decedent at the time of his death; (2) that it does not exceed the amount and value of the exemption allowed in favor of the widow and minor child, or children, or either; and (3) that no administration is granted within sixty days after decedent's death; (4) that the petition be duly filed by the widow (or one authorized by statute) in the probate court of the county in which decedent resided at the time of his death; and (5) that it indicate whether the land described constituted all the lands of decedent at the time of his death. Section 7948, Code.

The petition before us was duly verified by the widow in the county where decedent resided; averred all of the foregoing, and was in the proper form of a proceeding in rem; and the decree rendered there was as provided for in section 7951 of the Code. The decedent died in 1914 and the proceeding taken thereafter was as indicated in sections 4220-4227, Code of 1907. This petition for the allotment was filed in 1928, and indicated that it was under the Code of 1928 as sections 7948-7956. There was no appeal or direct attack on the decree to have the same set aside for fraud in the procurement of that decree as provided and defined by our statutes and cases.

Prior to the Act of February 10, 1923 (Gen. Acts of 1923, p. 43; section 7934, Code of 1928), providing for notice to the heirs in setting aside a homestead exemption to the widow and minors, and under the statutes then of force, no notice was required. McDonald v. McAlily, 206 Ala. 105, 89 So 198. In Lester v. Stroud, 212 Ala. 635, 637, 638, 103 So. 692, 694, which was before the act of 1923, the observation made of the old system without prescribed notice is: "This system naturally lent itself to abuses, and is now remedied by section...