ON MOTION FOR REHEARING.
In brief and argument submitted with appellant’s application for rehearing, it is insisted that the ruling of this appeal “strikes down a rule of property that has been consistently adhered to by this court for over 20 years, as enunciated and approved in the following-cases: Hodges v. Hodges, 172 Ala. 11 [54 South. 618]; *289Headen v. Headen, 171 Ala. 521 [54 South. 646]; Hall v. Hall, 171 Ala. 618 [55 South. 146]; Dickinson v. Champion, 167 Ala. 613 [52 South. 445]; Sims v. Sims, 165 Ala. 141 [51 South. 731]; Thacker v. Morris, 166 Ala. 395 [52 South. 73]; Faircloth v. Carroll, 137 Ala. 244 [34 South. 182]; Tartt v. Negus, 127 Ala. 301 [28 South. 713]; Quinn v. Campbell, 126 Ala. 280 [28 South. 676]; Brooks v. Johns, 119 Ala. 412 [24 South. 345]; Garland v. Rostick, 118 Ala. 209 [23 South. 698]; Jackson v. Wilson, 117 Ala. 432 [23 South. 521]; Gamble v. Kellum, 97 Ala. 677 [12 South. 82].”
Aside from Gamble v. Kellum, ante, not one of the above-cited decisions involved the Act of February 12, 1885 (Acts 1884-85, pp. 114, 115). Not having interpreted nor undertaken to interpret that act, those decisions did not establish, and could not have established, a rule of property in respect thereto. — Gamble v. Kellum did concern the act of 1884-85, but as affecting only the right of the widow to personal property. That and Smith v. Boutwell, 101 Ala. 373, 13 South. 568, are the only deliverances here in which the Act of February 12, 1885, was the positive law involved. The Act of December 13, 1892 (Acts 1892-93, p. 138; Code 1896, § 2071),'was different in phraseology from the Act of February 12, 1885, and in the opinion in Smith v. Boutwell was, as readily appears, interpreted to a different effect in respect of real property subject to exemption.
It is urged for the applicant that what was said in Smith v. Boutwell in interpretation of the act of 1884-85 was dicta. This contention is unsound. The action was ejectment brought by the heirs of John Boutwell against the grantees and heirs of Martha Boutwell, who was the widow of John Boutwell. The agreed statement of facts showed that the land in dispute was the homestead of John Boutwell at the time of his death (Feb*290ruary 15, 1887) ; that John left no minor children; and that the entire tract did not exceed in area 160 acres, and was of less value than $2,000. There was no administration upon John BoutwelFs estate. “Under the statute in force at the time of his death (Acts 1884-85, p. 114), the widow, Martha Boutwell, filed her application to have her exemptions set apart.” Thereunder the lands in question “were regularly set apart to her and the allotment confirmed and approved by the court.” The court said: “The simple question is whether the widow took a fee in the land.”
This question necessarily required for its correct solution the interpretation of the act of 1884-85, and so the court there concluded and undertook the performance of that duty. It could not determine the sufficiency of the petition, there raised and determined, without first deciding that a petition was essential. If a petition and consequent proceedings were, under the facts there present, wholly unessential to the vesting of the fee in the widow, to the homestead, less in area and value, than the maximum fixed by the act, obviously the court would have dismissed the point pressed by appellee and have based the conclusion upon considerations which find expression in the cases cited (as • before noted) for the applicant. Manifestly, the validity of a proceeding, with respect to its regularity or to the power of the tribunal undertaking to pronounce therein, can never be considered or determined without first ascertaining what is requisite to a valid proceeding of that nature, including the jurisdiction so to do.
The application for rehearing is denied.