51 So. 867 | Ala. | 1910
— On the 22d day of January, 1906, Dorcas Singo (the appellant) filed a petition in the probate court, alleging the death of George Singo on November 20,1905, that his real estate consisted of a small tract of land in said county and a small amount of personalty, that she was the widow of said Singo, etc., and praying that the said property be set apart to her under the exemption laws of Alabama. Commissioners were appointed, according to law, who made their report, setting it apart, making a complete inventory, showing that said property was all of the property owned by said Singo. Said report was ordered to lie over for 30 days, for exceptions, by decree of February 1, 1906.
On February 20, 1906, Judy McGehee, Ellen Shepard, and Willie Singo, claiming to be the beneficiaries under the will of said George Singo, filed exceptions to said report, alleging, among other matters, that said Dorcas Singo was not the 'widow of said George Singo. On March 13, 1906, an amendment to the exceptions was filed by Judy McGehee, as executor, “and all the other heirs at law of said decedent,” setting forth specifically that said Dorcas was the wife of another man. After several demurrers and motions, and action thereon, on May 18, 1907, a decree was rendered by said court, reciting that it appeared' to the court that said commissioners had proceeded according to law, also “that said Dorcas Sin-go was his wife (or widow) and a bona fide resident of said state and county,” the exceptions were overruled, and the property was set apart to said Dorcas Singo, in accordance with the prayer of the petition.
On May 1, 1907, Judy McGehee, caliming to be “the only surviving child, and also the only heir at law, of the said George Singo,” filed a petition, praying that the former decree be vacated and annulled, stating
On April 8, 1909, Jury Fritz, a minor, by her next friend (being her mother), Ellen Shepard, filed a petition in said court, alleging that the will of said George Singo was probated on June 26, 1908, and that by said will all the real estate of said George Singo (40 acres) was given to petitioner; that she had no notice of the proceedings by which the property was set apart; that one Mark D. Brainard was employed to represent the heirs of George Singo in the former proceedings; and, although he knew that Dorcas Singo was not the widow of said George Singo, he “fraudulently betrayed the interest of his client, and allowed the decree to go for said Dorcas.” The petition prayed that the former decree be vacated, “on the ground that the same was ill-advised and void as to petitioner,” and on July 17, 1909, the said court rendered another decree, vacating and setting aside the first decree.
The former decision of this court in this case .was based upon the familiar principle that a court has no power to vacate a decree rendered at a previous term, unless said decree was, not merely voidable, but absolutely void. — Baker v. Barclift, 76 Ala. 414. The case of Williamson v. Berry, 8 How. 495, 12 L. Ed. 1170, is based upon the principle that the chancellor was not authorized, under the act in question, to render the decree, and it was therefore void. The case of Thompson v.
On the question of the issue of letters of administration on the estate of a living man, various courts have decided differently; but the weight of authority is that they are void, because the court had no jurisdiction to act until the man was dead. The question was considered at length by the Supreme Court of the United States in the case of Scott v. McNeal, 154 U. S. 34, 14 Sp. Ct. 1108, 38 L. Ed. 896; the court, quoting from the Tisdale Casé, supra, that “the adjudication of that court is not upon the question whether he is living or dead, but only upon the question whether and to whom letters of administration shall issue (page 47 of 154 U. U., page 1113 of 14 Sp. Ct. [38 L. Ed. 896]),” holding that as to him the proceeding was “res inter alios acta,” and was depriving him of his property without due process of law. The court also quotes from the leading case of Griffith v. Frazier, 8 Cranch. 9, 23, 3 L. Ed. 471, to the
In the case now under consideration, the facts are not controverted that George Singo was dead, and that a. petition in accrdance with law was presented by Dorcas Singo, claiming to be his widow; that commissioners were appointed according to the statute, and reported in accordance with law; that the report was laid over for the requisite time, and that parties, claiming to be all of the heirs and devisees of said George, did file a. contest, raising the very issue which is sought to be raised here, to wit, that said Dorcas was not the widow of said George; and on that issue the court deliberated and decided that she was his widow. The court certainly had jurisdiction to determine that matter, and therein this ■case is widely differentiated from the case of letters of administration granted on the estate of a living man, in which the court never acquired jurisdiction to act at all.
There is nothing in the record from which this court ■can say whether or not the petitioner, Jury Fritz, is the devisee of George Singo. The first exceptions, filed by Judy McGehee and others, alleged that they were the beneficiaries of the will, and the amendment thereto is
But, aside from the failure of any showing of fact, we adhere-to the decision, heretofore rendered, that the first decree was not void, and therefore the probate court was without authority to annul it at a subsequent term. If, as alleged in the petition, the former decree was obtained by the fraud of the attorney who represented the heirs and devisees- of George Singo, and if fraud was of such a nature as to justify the annulling of the decree, that is not a matter which comes within the jurisdiction of the probate court. The fact that no-notice of the proceedings to set apart the homestead was given to the petitioner does not render the decree void as to the petitioner, so as to authorize the probate court to declare it a nullity. It is a valid decree as to the parties to the decree and, if it is not valid as to a third party, his remedy is not to have the decree set aside.
The Supreme Court of California, in an equitable proceeding wherein it was sought to set aside a former decree allotting a homestead, on account of false representations made by the widow, refused to grant the relief, holding, first, that the fraud was not such as to authorize the equitable relief; and, second, that the proceeding-
Our own court, in a case in which an insurance policy had been set apart by the appraisers as exempt to the widow, ’ said: “No provision is made for any personal notice to the widow, or minor children, of this proceeding, and none is required. It is one of those steps which the law requires to be taken by the court in the cases of administering estates, without reference to whether the widow or minor child has any personal knoAvledge of the step to be taken. It is only Avhere the widow or minor child, or children, or other person in interest, feeling aggrieved, files written exceptions to the report of the appraisers, within 30 days after its filing, that personal notice to the adverse parties is required to be given.” — Moore v. McClue, 124 Ala. 120, 126, 27 South. 499, 501. This court also held that, even where a homestead was improperly set apart, the creditor could not afterwards subject the homestead, as he was represented by the administrator in the proceedings for allotment. McDonald v. Berry, 90 Ala. 464, 467, 468, 7 South. 838. This court has also held that, even in an application to sell lands, as to AAdiich there are statutory requirements with regard to notice’, it is a proceeding in rem, and, if one of the heirs is omitted, his only remedy is to apply to be made a party and appeal, or to take some action during the term of the court. “And, with this ready mode of redress open to all whose rights may be preju
The decree of the court is reversed, and a decree will be here rendered, dismissing the petition of Jury Fritz, ' pro ami.
. Reversed and rendered.