(dissenting).
I am unable to agree with the majority of my brothers. From the wording of the statute, it appears that this proceeding may be instituted only when the property owned by the decedent at the time of his death does not exceed in amount and value the exemption allowed in favor of the widow and minor children. The statute, in its first clause, specifies that the property to which it refers is both the real and the personal property; therefore, in order to invoke the jurisdiction of the court, the petition must contain an allegation that the personal property did not exceed the amount exempt. We will attempt to demonstrate that holding.
In Singo v. McGhee, 160 Ala. 245, 49 So. 290, 291, the sufficiency of the jurisdictional allegations was in question, and the court said:
“The application must be verified, and must ‘set forth such facts.’ What facts ? The facts set out in the statute, as a matter of course: First, that the real and personal property owned by the decedent at the time of his death does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children; * * *»
In Miller v. First National Bank, 194 Ala. 477, 69 So. 916, 917, the court was considering, under collateral attack, the sufficiency of a petition filed under section 4224 of the Code of 1907, which is the same as the provisions of the Code of 1923. There, the court said:
“So far as the estate of the decedent is concerned, the necessary jurisdictional averment is that the property owned by him at the time of his death ‘does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children, or either.’ In Chamblee v. Cole, 128 Ala. 649, 30 So. 630, it was held that an averment that decedent at his death ‘owned without any incumbrance a plantation which does not exceed 160 acres or $2,000 in value’ was not sufficient to confer jurisdiction. But in Singo v. McGhee, 160 Ala. 245, 49 So. 290, it was held (by a divided court) that an averment that decedent ‘owned real and personal property’ at the date of his death, ‘which did not exceed in amount or value the exemptions allowed the widow,’ was sufficient to negative the ownership of any property in excess of that amount or value. These cases were construing section 2097 of the Code of 1896, which was the same as the statute here construed.
“On the authority of Singo v. McGhee, supra, which has become a rule of property, and which we are not disposed to now overrule, we hold that the petition in the present case was sufficient for jurisdictional purposes.”
In Hardy v. Morgan, 238 Ala. 251, 189 So. 878, 879, this court said:
“This petition was filed under the provisions of Sections 7948 et seq. of the Code, and its averments were suf*568ficient to quicken into exercise the jurisdiction of the probate court conferred by said Section 7948 of the Code. That is to say, the petition avers that the said George W. Morgan departed this life in Cherokee County, Alabama, on or about June 17, 1938, leaving petitioner as his surviving widow; that he left no minor children surviving him; that the property, real and personal, owned by the decedent at the time of his death did not exceed in amount and value the exemptions allowed by law in favor of his widow and minor children, and that there had ■ been no administration upon his estate. The petition also, gives the names, ages and place of residence of the heirs, and avers that all of them are over the age of twenty-one years. This petition was filed on the 26th day of October, 1938, being more than sixty days after the death of the said George W. Morgan, and was duly verified by oath of the applicant.” (Emphasis supplied.)
In Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105, 107, the probate proceedings were attacked for the failure of the petition to contain an allegation that the property sought to be set aside was all the real estate owned by the decedent at his death. Although the question of a failure to allege that the value of the personal property was not raised, the following discussion by the court indicates that such an averment is necessary to confer jurisdiction upon the probate court:
“If the court’s jurisdiction is not invoked by an administration on the estate within sixty days from the death of decedent, section 7948 authorizes a proceeding without such administration of the estate; but the court’s jurisdiction must be quickened into exercise by an application setting forth the facts required by the statute, and if on the hearing of the application the facts alleged are sustained by the proof, the court is authorized to set apart the exemptions and vest the absoltite title in the ex-emptioners. If on such hearing, the court’s jurisdiction having been thus quickened into exercise, it appears that the property exceeds in amount and value the exemptions allowed by law, the court has authority to set the exemptions aside and vest the title for the life of the widow and the minority of the minor child or children. This is the sole effect of section 7951, as revised. The provisions of the section of the Code conferring on the court jurisdiction to proceed in the absence of an administration were not affected.
“The first change in the provisions of that statute (now section 7948) was by the Act of February 28, 1887 (Acts 1886-87, p. 112), changing its requirements for the appointment of two instead of three comissioners. The title of the original Act of February 12, 1885 (Acts 1884-85, p. 114), and the act amendatory thereof, is: ‘To set apart to widows and minors property exempt from administration and debts under the laws of Alabama, without any administration thereon.’ The only other change was a revision by the Legislative Code Committee inserting the words, ‘as well as the names, condition, and residence, if known of the heirs of the decedent, other than the minor children of the decedent,’ immediately after the requirement that the application must be ‘verified by oath and setting forth such facts’; that is, that ‘the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow and minor child or children, or either, and no administration is granted on his estate within sixty days after his death.’ (Italics supplied.) The averments thus required have been consistently held to be jurisdictional since Brooks v. Johns, 119 Ala. *569412, 24 So. 345, and the repeated re-codification of this statute and its re-adoption without change, other than those noted, clearly indicate a legislative purpose to confirm that interpretation. Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.” (Emphasis supplied.)
In the case of Alford v. Claborne, 229 Ala. 401, 157 So. 226, 228, the late Chief Justice Gardner said:
“The chancellor concluded that the averments of the petition were in substantial harmony with the language construed in Singo v. McGhee, 160 Ala. 245, 49 So. 290, and Miller v. First National Bank, 194 Ala. 477, 69 So. 916, 917. But we are persuaded there is a marked distinction.
“In the Singo Case, supra, the petition alleged ‘that said George Singo owned real and personal property located in this state and county at the date of his death, zvhich did not exceed in amount or value the exemptions allozved the zvidozsP (italics supplied), and in the Miller Case, supra, the averments were to like effect, ‘that the said Stephen Forrest owned at the time of his death real and personal property which does not exceed in amount and value the exemptions allowed by law in favor of the undersigned applicant.’
“But the petition here considered contains no such averments or anything even indicating such a conclusion, and clearly the majority opinion in the Singo Case was rested upon the language of the petition which appears above as italicized. The averments in the Singo and Miller Cases that the property owned by decedent at his death did not exceed in amount and value that allowed by law as exempt, were the equivalent of the statement that the real estate did not exceed 160 acres of land, the value of which was not in excess of $2,000. There is nothing in the present petition to supply the deficiency, and the above-noted cases cannot be relied upon to sustain its sufficiency. That such was a necessary jurisdictional averment of the petition, we think, is clearly established by our decisions.
“In Brooks v. Johns, 119 Ala. 412, 417, 24 So. 345, 347, speaking of just such a defective petition, the court said: ‘The widow here made the application, but it did not contain the necessary averment without which the court was without authority to proceed, — that the real property of decedent, at the time of his death, did not exceed the amount and value allowed to his widow, etc. This averment which seems to have been industriously avoided, was jurisdictional.’
“And the decision in Chamblee v. Cole, 128 Ala. 649, 30 So. 630, is rested upon this authority; the holding being to the effect that, as the petition was lacking in this jurisdictional averment, the proceedings were void.
“In Cogburn v. Callier, 213 Ala. 46, 104 So. 330, 333, is the following language, also here pertinent: ‘Where there has been no administration of the estate, and an independent petition is filed for allotment of homestead under the code sections referred to, the petition must show the facts prescribed by the statute, which are regarded as jurisdictional; and, in the absence of such a showing the decree will be void on its face. Miller v. Thompson, 209 Ala. 469, 96 So. 481, 483; Chamblee v. Cole, 128 Ala. 649, 30 So. 630.’
“And in Miller v. Thompson, 209 Ala. 469, 96 So. 481, 482, the following: ‘It is the settled law of this state that the court of probate when it proceeds to set apart and allot homestead exercises a special and limited jurisdiction, which only attaches when a petition is filed containing the neces*570sary allegations.’ See, also, Chambers v. Chambers, 218 Ala. 192, 118 So. 385, and Williams v. Overcast, 229 Ala. 119, 155 So. 543.
“But it has been suggested that, as the probate decree recites that the petition did contain the jurisdictional averment, that sufficed and will sustain the proceedings. The recital in the decree is without support in the petition, and, as pointed out in the Singo Case, supra, the court being ‘without authority to proceed, the subsequent findings and recitals in the decree could not supply the absence of averments essential to its right to proceed with the case.’ See, also, Martin v. Martin, 173 Ala. 106, 55 So. 632. And this conclusion was reiterated in Keenum v. Dodson, 212 Ala. 146, 102 So. 230, 231, where the court, citing the Singo Case, supra, said: ‘Therefore if we construe the present bill as charging that the petition did not contain this essential averment, the probate court had no jurisdiction to render the decree in question, and the decree would be void notwithstanding its recital of jurisdictional facts.’ See, also, Martin v. Martin, 173 Ala. 106, 55 So. 632. This latter case is authority to the effect that, where there is ambiguity or uncerT tainty as to the language of the petition, the other proceedings, including the recitals of the decree, may be looked to in the proper interpretation and construction thereof, but that, in the absence of such ambiguity, resort cannot be had to the recitals in the decree to supply the lack of jurisdictional averment in the petition. See, also, Miller v. Thompson, supra.
% * sjc íj<
“It thus appears from our decisions this statute has uniformly been construed as requiring this jurisdictional fact to appear in the petition in order to validate the proceedings thereunder. With this settled and fixed construction, it has been brought forward into the Code of 1923 without change. There has been therefore a legislative adoption of such construction, as it is to be presumed that the statute was re-enacted in the light of the construction placed thereon by the court, and such construction becomes a part of the statute. Russell v. Thornton, 216 Ala. 60, 112 So. 347; Ex parte State ex rel. Davis, 206 Ala. 393, 90 So. 871; Compton v. Marengo County Bank, 203 Ala. 129, 82 So. 159; Boswell v. Slade, 207 Ala. 340, 92 So. 607; Moragne v. State, 201 Ala. 388, 78 So. 450; Harrington v. State [ex rel. Van Hayes], 200 Ala. 480, 76 So. 422; Wood-Dickerson Supply Co. v. Cocciola, 153 Ala. 555, 45 So. 192; Barnewall v. Murrell, 108 Ala. 366, 18 So. 831.”
In the case of Boozer v. Boozer, 245 Ala. 264, 16 So.2d 863, 864, decided by the Court in 1944, this Court declared:
“§ 694, Title 7 of the Code reads as follows: ‘When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow,’ etc.
“Examination of the constitutional provision (§ 205 of the Constitution of 1901) and the statutes dealing with homestead rights of which § 694 is a part (§ 625 et seq., Title 7, Code), shows that homestead rights must be measured not only by value but also by area. Since the word ‘value’ is used in § 694, the word ‘amount’ in § 694 necessarily refers to area and not to value. Our decisions support this, view. In the case of Williams v„ Overcast, 229 Ala. 119, 155 So. 543, 546, this court said: ‘In declaring upon jurisdictional facts in Singo v. McGhee, 160 Ala. 245, 248, 49 So. 290, 291, under sections 2097 and 2100 of the Code of 1896 [Code 1940, Tit. 7, *571§§ 694, 697], it was said: “The application must be verified, and must set forth such facts.” What facts? The facts set out in the statute, as a matter of course: First, that the real and personal property owned by the decedent at the time of his death does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children * *
“In Hardy v. Morgan, 238 Ala. 251, 189 So. 878, 879, this court said: ‘This petition was filed under the provisions of Section 7948 et seq. of the Code (Code 1940, Tit. 7, § 694 et seq.), and its averments were sufficient to quicken into exercise the jurisdiction of the probate court conferred by said Section 7949 of the Code. That is to say, the petition avers that said George Morgan departed this life in Cherokee County, Alabama, on or about June 17, 1938, leaving petitioner as his surviving widow; that he left no minor children surviving him; that the property, real and personal, owned by the decedent at the time of his death did not exceed in amount and value the exemption allowed by law in favor of his widow and minor children * * * >
“In the case of Brooks v. Johns, 119 Ala. 412, 417, 24 So. 345, 347, this court said: ‘By the very terms of the statute under which the proceeding for homestead in this case was instituted, it is provided, as has appeared, “when the property, real or personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemptions allowed in favor of the widow and minor child or children, or either,” etc., the probate court, “upon the application of the widow * * * ” must appoint commissioners and proceed to set apart the exemption. The widow here made the application, but it did not contain the necessary averment without which the court was without authority to proceed, — that the real property of decedent, at the time of his death, did not exceed the amount and value allowed to his widow, etc. This averment, which seems to have been industriously avoided, was jurisdictional; * * *.’
“In the case of Miller v. First National Bank, 194 Ala. 477, 69 So. 916, 917, this court said: ‘The petition was filed under section 4224 of the Code of 1907 (Code 1940, Tit. 7, § 694). So far as the estate of the decedent is concerned, the necessary jurisdictional averment is that the property owned by him at the time of his death “does not exceed in amount and value the exemptions allowed in favor of his widow and minor child or children, or either.” ’
“Nor is the fatal lack of jurisdictional averment aided by the subsequent proceedings of the court. The judgment of the court is void.
“ ‘The court’s jurisdiction not having been quickened into exercise in the mode provided by statute, its proceedings and judgment were void, and cannot be looked to to supply the omitted, essential jurisdictional averment.’ Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105, 106.
“See also Alford v. Claborne, 229 Ala. 401, 157 So. 226; Keenum v. Dodson, 212 Ala. 146, 102 So. 230.”
See, also, the cases of Mitchell v. Mitchell, 258 Ala. 572, 64 So.2d 104; Parker v. Money; 258 Ala. 568, 64 So.2d 108. These two cases were construing section 697, Tit. 7, Code 1940, as amended by Acts 1951, p. 1558.
*572From an' examination of the statute in question and the above-quoted judicial expressions as to the requirements of a petition filed under that statute, it is apparent that in order to invoke the jurisdiction of the probate court in a proceeding to set apart property as exempt to a widow and minor child or children without an administration of the estate of the decedent under section 7948, Code 1923, it is necessary to allege, among other things, that the personal property owned by the decedent at the time of his death did not exceed the value exempt to the widow and minor child or children, and that a failure to so allege renders the proceeding void.
The petition in the case before us describes the real property owned by decedent at the time of his death and alleges that it was all the real estate which he owned and that at the time of his death it was less in value than $2,000, and less in area than 160 acres. The petition did not contain any allegation whatsoever concerning the personal property owned by the decedent at the time of his death. In the absence of this averment, the probate court had no jurisdiction in the matter. The decree appealed from is therefore void.
In my opinion, the proceeding and decree of the probate court, being void for want of jurisdiction, require that the appeal be dismissed. Walton v. Walton, 256 Ala. 236, 54 So.2d 498; Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314; Craig v. Root, 247 Ala. 479, 25 So.2d 147; Boozer v. Boozer, 245 Ala. 264, 16 So.2d 863.
It may be that our opinion as expressed above might disturb some titles long since regarded as settled, but in our humble judgment, it is better to change, what to us seems to be the plain language of the statute, by legislative, rather than judicial, action.
. I, therefore, respectfully dissent, and in which dissent Justice GOODWYN joins.