Miller v. First National Bank, 69 So. 916

Miller v. First National Bank

69 So. 916 | Ala. | 1915

SOMERVILLE, J.—

(1) Although there are some decisions to the contrary in other jurisdictions, it must be *480regarded as the settled law of this state that: “Insurance money takes the place in the exemption statute of the property destroyed, and, like it, is also exempt.”— Ellis v. Pratt City, 111 Ala. 629, 20 South. 649, 33 L. R. A. 264, 56 Am. St. Rep. 76.

In that case it was said that: “The reason of the rule is found in the fact that the property has been exempted by law for the use of the exemptor and his family, and he may insure it to> protect himself and them from loss.”

Unquestionably, after the allotment of the homestead to the widow in this case, if not also before, the proceeds of the insurance policy taken out on the homestead building by her husband were as fully exempt to her as was the building itself. And, if the homestead passed to her' in fee simple by the probate decree of allotment, she owned the insurance money absolutely as against both heirs and creditors. Hence the only real question in this case is whether the probate decree vested the title to the homestead absolutely in the widow.

(2) The petition was filed under section 4224 of the Code of 1907. So far as the estate of the decedent is concerned, the necessary jurisdictional averment is that the property owned by him at the time of his death “does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children, or either.” In Chamblee v. Cole, 128 Ala. 649, 30 South. 630, it was held that an averment that decedent at his death “owned without any incumbrance a plantation which does not exceed 160 acres or $2,000 in value” was not sufficient to confer jurisdiction. But in Singo v. McGhee, 160 Ala. 245, 49 South. 290, it was held (by a divided court) that an-averment that decedent “owned real and personal property” at the date of his death, “which did not exceed in amount or value the exemptions allowed the widow,” was sufficient to negative the *481ownership of any property in excess of that amount or value. These cases were construing section 2097 of the Code of 1896, which was the same as the statute here construed.

On the authority of Singo v. McGhee, supra, which has become a rule of property, and which we are not disposed to now overrule, we hold that the petition in the present case was sufficient for jurisdictional purposes. It is not necessary for the petition to aver that the particular property, if any,‘sought to be set aside, was the only property owned by the decedent at his death. The statute (section 4227) merely requires that the court shall .ascertain that the property set aside was all the property left by the decedent, and that he left less property than was exempt by law, as a condition to the vesting of the title absolutely. If it is so ascertained and declared, then the title so vests, whether the decree does or does not expressly so declare.

(3) As the petition, proceedings, and decree of the probate court are here exhibited, it is immaterial whether the property allotted was or was not the actual homestead of decedent, or whether he in fact owned other property or not. The decree cannot be collaterally impeached on those issues, and no fraud in its procurement is either charged or proven. That heirs at law are often ignorant of the pendency and purpose of proceedings by the widow or minor children for homestead allotment, and hence have no real opportunity to contest them, is a grievance which must be redressed by the Legislature and not by the courts.

It results that the decree of the chancery court must be affirmed.

Affirmed.

Anderson, C. J., and Mayfield and Thomas, JJ., concur.