Leslie v. Tucker

MANNING, J. The facts set forth in the amended petition in this cause, show a case which imposes on the judge of probate the duty of designating three disinterested persons to make selection of the personal property that was of the late Willis Henderson at the time of his death, that should be exempt for the benefit of the widow who survived-him. This is required by section 13 of the act “to regulate property exempted from sale for the payment of debts,” approved April 23, 1873. There being no minor child of' the deceased, the rights of the widow were, when she died, devolved on the administrator of her estate. An appraisement of the property selected, as made by the appraisers of the estate, should be returned by the administrator of the deceased husband’s estate to the Probate Court,., in order that its records may show what portion of the estate has been thus withdrawn from administration. But according to the recent ruling of this court in David’s Administrator v. David (56 Ala. 49), the Probate Court, as such, had no jurisdiction of the petition by which the proceedings-were initiated, those proceedings were coram non judice. and the decree therein was not a proper subject for the ex- • ercise of the appellate authority of this court. The remedy,, consequently, if any be required, would be by mandamus-from the Circuit Court to the judge of probate. It is, .therefore, ordered that the appeal be dismissed.