Coon v. Coon

85 So. 2d 430, 264 Ala. 127, 1955 Ala. LEXIS 746

• Court: Supreme Court of Alabama
• Decided: November 10, 1955
• Docket: 4 Div. 781
• Status: Published

Opinions

MERRILL, Justice.

This is an appeal from the Circuit Court of Covington County, Alabama, in equity. Rosa Coon, the appellee, was formerly the wife of A. M. Coon, now deceased, whose estate is the subject of this suit.

On 13 October 1947, the Circuit Court of Covington County, rendered a decree in an action for support and maintenance in which Rosa Coon was the complainant and A. M. Coon, now deceased, was the respondent. The court awarded Rosa Coon the sum of $75 per month as support and maintenance for herself and for her minor son, Wendell Coon, and a solicitor’s fee of $150. Rosa Coon received no payments from A. M. Coon in compliance with the terms of the decree of the Circuit Court of Covington County.

On 28 November 1948, A. M. Coon secured an absolute divorce from Rosa Coon in the Circuit Court of Russell County. A. M. Coon then married Venie Coon. A. M. Coon died on 31 May 1950, leaving a widow and four children. His will was duly admitted to probate on 21 January 1952, and on that date, letters testamentary were issued to Venie Coon, as executrix. On 5 February 1952, Rosa Coon filed a verified claim against the estate of A. M. Coon in the amount of $2,250, which she claimed was due to her under the decree of 13 October 1947 rendered by the Circuit Court of Covington County.

On 7 February 1952, the administration of the estate was removed from the Probate Court to the Circuit Court. The inventory of the executrix filed on 5 September 1952, showed that at the time of his death, A .M. Coon owned personal property equal in value to $32. Venie Coon dissented from the will of her deceased husband and filed an application that homestead exemption be set apart for her and the minor children of A. M. Coon. It was alleged in this application of Venie Coon that the only property owned by A. M. Coon was his homestead, which at the time of his death was occupied by them. It was further alleged that the homestead property was not over 80 acres and had never exceeded $1,500 in value. The Court ordered the register to hold a reference and directed him to ascertain the facts which were necessary to set apart homestead exemption.

On 24 April 1953, Rosa Coon, the first wife, petitioned the court to fix a lien against the land of A. M. Coon for the payment of her claim. Pending consideration of this petition, the court stayed the order of reference. On 6 May 1953, Rosa Coon petitioned the court to appoint an administrator ad litem. Venie Coon demurred to both of these petitions. The court sustained the demurrers to Rosa Coon’s first petition and demurrer to the second petition was overruled on 1 June 1953. On that date, the court appointed an administrator ad litem for the estate of A. M. Coon.

On 3 June 1953, the administrator ad litem petitioned the court to order a sale of the lands of A. M. Coon for the payment of Rosa Coon’s claim against the estate.

The appellants’ demurrers were overruled, whereupon they filed their answer. The principal averments of the answer were that the land in question was the homestead of A. M. Coon and was less than 160 acres in area and less than $2,000 in value. Upon motion of the administrator ad litem, the allegation in appellants’ answer essential to the claim of homestead exemption was stricken.

The learned Chancellor took testimony and on 27 November 1953, rendered a decree ordering the land in question sold at public outcry and the proceeds distributed: first, to the payment of the cost of the proceedings ; and secondly, to pay the appellee the sum of $1,685, the amount found by the Chancellor to be due to her under her decree for separate maintenance; and thirdly, the remainder of the proceeds to be retained by the register to await the further orders of the court.

From the above decree, the appellants perfected their appeal on 11 January 1954. Appellee filed a motion to dismiss the appeal contending that this court is without jurisdiction in this matter, as more than thirty days elapsed from the date of the decree to the perfecting of the appeal. Appellee contends by her motion that this appeal is governed by the provisions of the Code of 1940, Title 61, Section 216. We shall first direct our attention to the motion to dismiss.

Title 61, Section 216, provides that from a judgment rendered on a disputed claim against an estate either party may appeal within thirty days. A proceeding under this Code section has as its only purpose the fixing of the rights of the parties to the funds in trust, so as to determine who is entitled to the proceeds on distribution. Tillery v. Commercial Nat. Bank of Anniston, 241 Ala. 653, 4 So.2d 125. In effect, it is a decree in the nature of a declaratory judgment to determine the validity of the claim. Merchants Nat. Bank of Mobile v. Cotnam, 250 Ala. 316, 34 So.2d 122. The instant decree, although dispositive of the claim of Rosa Coon was, in the main, essentially an order for the sale of the decedent’s realty on petition of the administrator ad litem. An appeal from a decree of this finality is not governed by Title 61, Section 216.

The appellee also asserts that this court is without jurisdiction of this appeal for the reason that no citation of an appeal was served upon the administrator ad litem within the time and manner fixed and required by Code of 1940, Title 7, Section 801. The record discloses, however, that in the proceedings in the Circuit Court, the Honorable W. H. Baldwin acted both as attorney for the claimant, Rosa Coon, and as administrator ad litem. He also appears before this court in such dual capacity. The record further discloses that a copy of the citation of appeal was served on Honorable W. H. Baldwin. Service of citation of appeal on the attorney for the administrator ad litem was sufficient. Collins v. Thompson, 259 Ala. 82, 65 So.2d 491.

The motions to dismiss the appeal are, therefore, overruled.