De Armond v. Whitaker

HARALSON, J. The petition of the widow for exemption, made a part of the agreement of the parties on which the case was tried, avers that Elijah Whitaker left at his death real and personal property not exceeding the amount exempted io toidoios and minors under the latos of this Slate, following substantially the language of section one of the act of 1884-5, under which the petition purports to have been filed. The number of acres of land exempted to widows at that time, if it did not exceed $2,000 in value, was 160 [255] acres; and the commissioners who set aside the exemption in this instance — which they report as 160 acres — valued it at $500. The number of acres described in the complaint as sued for is 180 acres. The verdict was “for the land sued for in this action.” The judgment was for .the recovery of the identical land described in the complaint — 180 acres. The report of the commissioners purports to set aside 160 acres to the widow, but when footed up it amounts to 140 acres. The agreed state of facts recites, that said Nancy 'Whitaker “filed in the Probate Court of said county her application for a homestead, and proceedings were had thereon, setting apart the lands in suit to her as a homestead;” and yet we have just seen that the land sued for, and that described in the report of the commissioners, is different. The agreed state óf facts further recites, as an admission for the trial, that “Nancy Whitaker sold and conveyed said lands in dispute, mentioned in the 2olaintiff’s complaint, to the defendant, David Davis.” The lands described in the conveyance are, “20 acres off the south end of N. E. £ of S. E. |, also N. i of S. W. £ of S. E. I also S. W. k of B. E. ¿, also N. E | of S. W. J, also S. E. j of S. E. all in Bee. 9, T. 6, B. 8, containing 160 acres, (in) Marshall county, Alabama, which was set apart to me by the Probate Court of Marshall county, under the act of the legislature of 1884-5, as the widow of Elijah Whitaker, deceased.” The land described in the conveyance of Mrs. Whitaker to Davis, is different from that described in the complaint, judgment, and the report of the commissioners, but it is admitted, that they are the lands which are mentioned in the plaintiff’s complaint, and that defendant De Armond was in .possession of them, as the tenant of said Davis, at the time this suit was brought. These discrepancies of description have not been noticed in argument, on either side, but the case has been treated as though Elijah Whitaker owned at his death only 160 acres of land, which was set apart to his widow, under the proceedings for that purpose; the contention being, on the one side, that when so set apart, the absolute title vested in her, which she had a right to convey, and did convey to David Davis; and on the other, that such proceedings vested in her only a life-estate, and the remainder reverted to the heirs of Elijah Whitaker at her death. Whichever of these contentions may be correct, it is evident from what has been shown, that the plaintiffs have recovered of defendants 180 acres of land, twenty acres more than the agreed state of [256] facts shows were really in controversy, and when we are left in ignorance as to what lands said Elijah Whitaker owned at his death, whether more or less than 160 acres. If he owned the 180 acres sued for, the Probate Court had no jurisdiction to set aside the homestead exemption under Mrs. Whitaker’s petition, whether his estate was solvent or insolvent.—James v. Clark, 89 Ala. 606. If he owned only 160 acres, and it was of less value than $2,000, and no administration was had on his estate after 60 days from his death had elapsed, that court did have jurisdiction to have her exemption set aside under said act, and it would have vested absolutely in her, as completely and fully as if said estate had been regularly administered upon and declared insolvent.—Smith v. Bontwell (at present term), 13 So. Rep. 568. In the state of this record, with the discrepancies and seeming contradictions we encounter in the proofs, there was too much uncertainty to justify the general charge for the plaintiffs. On another trial, from what has been said, the real facts may be ascertained, and the cause tried on its merits. Reversed and remanded.