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 |
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.
John E Deloney, Jr., of Tuscumbia, for appellant.
W. H Mitchell, of Florence, and Kirk & Rather, of Tuscumbia, for appellees.
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:
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:
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,
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: 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...
To continue reading
Request your trial-
Davis v. Reid, 3 Div. 712
...the law to be complied with as to supplying the jurisdictional facts to be averred and shown. Craig v. Root, supra; Williams v. Overcast, 229 Ala. 119, 155 So. 543. Section 7948, Code of Alabama 1923, was the law in force as of the death of the decedent. This is now Title 7, § 694, Code of ......
-
Bishop v. Johnson, 6 Div. 914.
...of that date. Code 1907, §§ 4196, 4198, Code 1940, Tit. 7, §§ 661, 663; Haynes v. Haynes, 236 Ala. 331, 181 So. 757; Williams v. Overcast, 229 Ala. 119, 155 So. 543. Since the Code of 1907 the widow and minor children of a decedent do not obtain absolute fee simple title to a homestead left......
-
Howell v. Ward, 4 Div. 801
...other exemptions, freed of payment of debts and administration, are well understood and need not be recited. Williams v. Overcast et al., 229 Ala. 119, 155 So. 543, and authorities collected; Gray v. Weatherford, 227 Ala. 324, 149 So. 819. This bill is so framed as to afford due protection ......
-
Wright v. Fannin, 7 Div. 232.
...to the widow, where there were no minor children, was under the last statute, section 7948, Code (Williams v. Overcast et al. [Ala. Sup.] 155 So. 543); and the sufficiency of the proceeding had and judgment rendered setting aside the homestead will be so adjudged. The instant bill is a dire......