Hosea v. Davis

McCLELLAN, C. j. J. M. Davis at the time of his death OAvned other lands in this State than his homestead. Hence § 2071 of the Code — or rather the act of December 13th, 1892 — did not operate to vest title to his homestead in his'widoAV and minor children. His estate has never been declared insolvent. Hence title was not vested in them under § 2069. They took no title to the land, but only the rights of use, occupancy and the perception of rents, incomes and profits “during the life of the widoAV or the minority of the child or children, Avhichever might last terminate.” The AvidoAv and one of the minor children, Irene Davis, having died, these rights .enured solely to the surviving minor child, Beulah Davis, now Mrs. Hosea; and Avere confirmed to her by the setting apart of this land as homestead exemption to her subsequent to the deaths of her mother and sister. She is entitled to hold and occupy it during her minority, not only free from the debts of-her father’s estate but free also from descent, a continuation in a sense of the father’s homestead title. — Miller v. Marx, 55 Ala. 322, 342-3. Irene Davis therefore had at the time of her death no title to this land as a homestead, but only the right to use and occupy it during her minority. This right, of course, Avas cut short by her death. She had no right or title as an heir of J. M. Davis, deceased, which could be sold after her death pending the minority of Beulah Davis. Hence there Avas no authority in the probate court to order the sale of*any interest in the lana to pay the debts of her estate, while it Avas held by Mrs. Hosea [214] as a homestead exemption. What the legal status of the land will be upon the termination of Mrs. Hosea’s said homestead by her attaining the age of tiventy-one years, the exigencies of. this case do not require us to discuss. The probate court erred in decreeing the sale of an undivided half interest in this land to pay the alleged debts of the estate of Irene Davis, deceased. That decree will be reversed, and a decree will be here entered denying the prayer of the petition and dismissing it out of court. Reversed and rendered. Tyson, Simpson and Anderson, J. J., concurring.