94 So. 167 | Ala. | 1922
The bill sought to vacate a decree of the probate court setting aside homestead and exemptions to the widow of deceased. Copies of the proceeding and decree of the probate court relating to the setting aside of the widow's homestead and personal exemptions are exhibited with the bill and on the pleading the decree of the court held not subject to collateral attack. Edmondson v. Jones,
In Douglas v. Bishop, supra, is contained the observation that the statute providing for no notice to the next of kin in probate proceedings for homestead allotments and setting aside exemptions from estates of decedents is a matter to be addressed to the Legislature and not to the courts (Moore v. McLure, supra); that such proceedings, as setting apart a homestead to the wife, although no notice was given to the next of kin was binding, when consummated by appropriate decrees not sought to be reviewed by appeal, unless the same can be successfully attacked for fraud; and that such a decree will not be set aside for fraud in a "collateral proceeding," because the widow's affidavit was false as to the amount of land of the deceased, as the fraud necessary to set aside a decree of a court of competent jurisdiction must be such as has relation to extrinsic matters, and not to a fraud in the matter in which the decree was rendered. Hogan v. Scott,
In the matter of setting aside the widow's homestead and exemptions, the probate court did acquire jurisdiction, and the decree sought to be attacked in the instant case was final and conclusive as to the questions necessary for the probate court to determine, viz: (a) Whether John Hubbard, at the time of his death, owned the real and personal property involved in this suit; (b) whether the lands were all of the lands which he owned at the time of his death, and, if so, whether they exceeded either in value or area the constitutional limit of a homestead; (c) whether the personalty of which he died seized and possessed was in value more than $1,000; (d) whether Catherine Hubbard was in fact his widow; and (e) whether said decedent left surviving him any minor child or children. These questions were directly presented for judicial determination, and finally decided on the proceeding, and by the decree of the probate court exhibited to complainant's bill.
Aside from the foregoing, the cause was tried before the court on pleading and proof and testimony taken orally before the judge. On final hearing it was decreed that complainant was not entitled to the relief prayed, and the bill was dismissed. There was a conflict in the testimony, on the one hand, as to the age of the plaintiff at the death of her father, that being the time and law applicable (Long v. Brown,
As stated, the knowledge of such facts, said to have been brought home to complainant after she was of full age, and while the proceedings were in fieri in the probate court was denied by her, testifying in her own behalf. There being ample evidence to support a finding of the court on the testimony, the decree in respect of the finding that complainant was over the age of 21 years at the time of her father's death, and other facts necessary to a recovery, will not now be disturbed. Hackett v. Cash,
Affirmed.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur. *271
