Miles v. Lee , 180 Ala. 439 ( 1913 )

ANDERSON, J.

Under the statute as it existed in the Code of 1896, § 2071, this coui't has frequently held that when the homestead left by a decedent Avas all of. his real estate, and was less than his homestead exemption in area and value, the title vests absolutely in the widow and minor children, one or both, whether the same is set apart or not.—Faircloth v. Carroll, 137 Ala. 243, 34 South. 182; Dickinson v. Champion, 167 Ala. 613, 52 South. 445; Hodges v. Hodges, 172 Ala. 11, 54 South. 618; Hall v. Hall, 171 Ala. 618, 55 South. 146. Section 2071 of the Code of 1896, as placed in the Code of 1907, § 4198, has undergone a change, and Avhile the rule as laid down in the cases supra is still applicable as to the creditors of a decedent, section 4198 provides that, as to his heirs, the title to the homestead does not vest absolutely in the AvidoAV and minor children, one or both, “until it is so set apart and until it is judicially determined that it is all the real estate OAvned by the decedent and that it is of not greater value than tAVO thousand dollars.” It would therefore appear that as a condition precedent to a vesting of the absolute title in the widow or minor children, one or both, as against the other heirs of the decedent, the homestead must not only be set apart, but it must be judicially ascertained that it was all of the real estate owned by the decedent at the time of his death, and was not greater in value than $2,000.

The statute gives the probate court jurisdiction only in two instances for setting apart the homestead, to wit, by section -4224, which provides for doing so when the property left by a decedent does not exceed the exemption when no administration is granted upon the estate within 60 days, and certain preceding sections provide for the setting apart of the homestead when the estate is undergoing an administration. Section 4224 has no application to the present case, as there was an administration of the estate; so the question is whether or not the attempt to have the homestead set apart in 1911, after a final settlement of the estate and after a final discharge of the administrator, was authorized by the statute. The probate court, being of limited powers and jurisdiction, can only exercise jurisdiction given it by the statute. After the administration was finally settled and the administrator was discharged, the probate court ceased to have any further jurisdiction over-the estate and lost all right or power to make orders or render decrees pertaining to same.—Medley v. Shipes, 177 Ala. 94, 58 South. 304; Horn v. Bryan, 44 Ala. 88. The decree of the probate court setting the homestead aside after a final administration of the. estate was coram non judice. The setting apart and judicial ascertainment of the extent and value of the estate must be by a court of competent jurisdiction, and which said jurisdiction is given the probate court in certain instances, and in cases where the probate court has not, or has lost, jurisdiction, if it once existed, the chancery court, or perhaps other tribunals, could do so; but this is a question we need not decide, as it should be set apart during the life of the widow or minority of the children in order to cut off the other heirs.

In the case at bar, there were no minor children, and as the homestead was not legally set apart to the widow, during her lifetime, upon her death it went to the heirs of the husband, and which was the conclusion of the trial court.

The judgment of the city court is affirmed.

Affirmed.

McClellan, Sates, Somerville, and deGraffeneied, JJ., concur. Mayfield, J., dissents. Dowdell, C. J., not sitting.