16 So. 2d 863 | Ala. | 1944
This appeal is from a decree setting apart a homestead to appellee as the widow of John Henry Boozer, deceased, pursuant to § 694, Title 7, Code of 1940, § 7948, Code of 1923. The pertinent part of the petition is as follows: "That at the time of *265 the death of said decedent he was seized and possessed of the following described property, to-wit: The SE1/4 of the NW1/4 and the SW1/4 of the NE1/4 of Section 6, Township 5 South of Range 7 East, Jackson County, Alabama, and containing 80 acres, more or less; that said above described land was subject to a mortgage to the Federal Land Bank of New Orleans in the approximate sum of $1200; that the above described real property does not exceed the amount exempted to the widow as provided under the laws of this State. Sixty days have elapsed since the death of said decedent, and there has been no administration on his estate."
Appellants take the position that the petition is fatally defective because it lacks, among other things, the jurisdictional allegation that the property does not exceed in value the exemption allowed in favor of the widow. Appellee argues that the averment "that the above described real property does not exceed the amount exempted to the widow as provided under the laws of this State" is jurisdictionally sufficient on the theory that the word "amount" refers to and includes both amount in value as well as amount in area. In the light of the statute, as construed by the decisions of this court, the position of appellants is correct. The word "amount" in the statute deals with area and not with value. The petition must be determined by the statute under which it is brought.
§ 694, Title 7 of the Code reads as follows: "When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow," etc.
Examination of the constitutional provision (§ 205 of the Constitution of 1901) and the statutes dealing with homestead rights of which § 694 is a part (§ 625 et seq., Title 7, Code), shows that homestead rights must be measured not only by value but also by area. Since the word "value" is used in § 694, the word "amount" in § 694 necessarily refers to area and not to value. Our decisions support this view. In the case of Williams v. Overcast,
In Hardy et al. v. Morgan,
In the case of Brooks v. Johns, Adm'r,
In the case of Miller v. First National Bank,
Nor is the fatal lack of jurisdictional averment aided by the subsequent proceedings of the court. The judgment of the court is void.
"The court's jurisdiction not having been quickened into exercise in the mode provided by statute, its proceedings and judgment were void, and cannot be looked to to supply the omitted, essential jurisdictional averment." Bank of Columbia v. McElroy,
See also Alford v. Claborne,
In view of the conclusion reached, it is not necessary to consider assignments of error raising other questions.
Since the judgment of the probate court is void, it will not support an appeal. This court will ex mero motu dismiss the appeal. Gunter v. Mason,
Appeal dismissed.
GARDNER, C. J., and BOULDIN and FOSTER, JJ., concur.