Cochran's Adm'r v. Sorrell

Cochran's Adm’r v. Sorrell. Petition by Widow for ‘Allotment of Homestead Exemption. 1. Contest of claim of homestead exemption; where tried. — Wlien objections are filed by the administrator to the widow’s claim of a homestead exemption, or to the allotment thereof made-by commissioners appointed by the Probate Court, that court has no power to try the issue (Code, §§ 2838, 2841), but should certify it to the Circuit Court for trial. Appeal from the Probate Court of Calhoun. Heard before the Hon. A. Woods. The record in this case shows that, on the 14th June, 1882, Mrs. M. C. Sorrell filed her petition in said Probate Court, claiming a homestead exemption in the lands of her deceased husband, S. D. Cochran, for the benefit of herself and two infant children who resided with her, and praying the appointment of commissioners to set apart and allot such homestead to her; that said court, on the same day the petition was filed, appointed six commissioners to make the allotment (three in Cleburne county, and three in Calhoun, in which two counties the lands were alleged to be situated), and directed them to report their proceedings to the court on or before the 15th July, 1882; that said commissioners made and filed their report on the 7th July, and the court' appointed August 19th for the hearing of it; that on the 22d July, W. W. Whiteside, the administrator of said Cochran’s estate, filed his petition in the .court, asking to strike from the files the petition of the widow, and to set aside the proceedings had under it, and the court thereupon appointed the 19th August for the hearing of his petition ; and that on said 19th August, the two .matters coming on to be heard together, the court overruled the adminis- ’ trator’s objections! dismissed his petition, and confirmed the report and allotment of the commissioners. The administrator duly excepted to these rulings, and he now assigns them as error. Parsons, Pearce & Kelly, for appellant, cited Kelly v. Gcurreti, 67 Ala. 304. [MAJORITY — Per Curiam.] Per Curiam. — The decree of the Probate Court must be reversed, on the authority of Kelly v. Garrett, 67 Ala. 304; Baker v. Keith, 72 Ala. 121; and Farley v. Riordon, 72 Ala. 128. Exceptions or objections to the allotment of a homestead having been interposed by the administrator, it was the duty of the Probate Court to have certified them to the Circuit Court for trial, and not to have entertained jurisdiction to hear and determine them. Keversed and remanded.