Dake v. Sewell

ANDERSON, J. The husband, J. A. Sewell, being the OAvner at the time of his death of 235 acres of land and OA'er $2,000 in value, the widow could acquire no title to it as a homestead, unless it be set apart to her in the course of administration upon her husband’s estate, and tbe probate court Avas Avithout jurisdiction to decree her the homestead before administration. — Brooks v. Johns, 119 Ala. 412, 24 South. 345 ; Chamblee v. Cole, 128 Ala. 649, 30 South. 630. The statutes permitting a selection by the aaíaIoav or authorizing j;he homestead to be set apart before1 administration are only applicable when decedent OAvned not exceeding the exemption at the time of his death. The fact that the Avidow claimed dower and reduced the acreage under 100 acres did not give her the right to the homestead Avithout .administration. The law dispenses Avith an administration only in case the property OAvned at the time of the husband’s death does not exceed the' exemption, not in case it is reduced by some act of the widOAV subsequent to his death. The trial court properly excluded all the records from’ the probate court to establish the homestead, as the proceedings Avere AToid; the court being Avithout jurisdiction to set it ajnirt before administration upon the husband’s estate. It Avas probably immaterial to shoAV the value of the 159 acres by the plaintiffs, but these defendants cannot [584] complain, as they attempted to show that an administration was unnecessary, because the acreage had been reduced by the claim of dower to less than the number of acres exempt; and plaintiffs simply showed that such a contention could not avail the defendants, because the land was worth over $2,000 with the dower taken from it. Such not only seems to have been the attitude of the defendants in the court below, but their counsel are insistent on the point in the brief filed in this court. • Section 1534 of the Code of 1896 provides that “when the suit is against tenant the landlord must be made a party defendant to the suit upon the motion of the defendant,” etc. It appears that at the first term of court Hannah R. Sewell, the landlord, was made party defandant upon a motion of the tenants and the case was continued. At a subsequent term, and after the plaintiffs had introduced their evidence, the defendants other than Hannah R. Sewell moved to make “Dot Sewell” a party defendant, and assign as error the action of the court in refusing to grant the motion. We do not think the ruling of the court on this point should be reversed. The defendants had named their landlord in the former motion, which had been granted, and should not be permitted to complain because they did not know their landlord when the first motion was made. Trial courts would experience great difficulty in trying an action of ejectment if this court should reverse them because the defendants would happen to think of a new landlord at each subsequent term of the court and seek to make him a party. The mother of the Byron children and of Anna Curtis each having died subsequent to théir father, their respective husbands took a life estate to their part of the property, and the children do not take until the death of their father, and could not maintain this suit. — Code, 1896, § 2534. Upon the death of the wife leaving land as a part of her separate estate, the husband takes a life estate in it all, unless he has been divested of all control over it by a, decree of the chancery court. The statute on this subject is plain and unambiguous, “and under [585] it the husband takes as distributee in all the transmissible estate of which the w.ife died the owner, whether in possession or not.” — Thompson v. Thompson, 107 Ala. 163, 18 South. 247 ; Marshall v. Crow’s Admr., 29 Ala. 280. This doctrine is not in conflict in the slightest with what was said in the case of Nicrosi v. Phillippi, 91 Ala. 299, 8 South. 561. In that case the muniment under which the wife held title excluded all the marital rights of the husband. In this case the wives inherited from their father, and the statute gave their respective husbands a life estate in the land. In actions of ejectment, all the plaintiffs must recover, or none can recover. — Oates v. Beckworth, 112 Ala. 359, 20 South. 399 ; Whitlow v. Echols, 78 Ala. 206 ; Seelye v. Smith, 85 Ala. 25, 4 South. 664. As the Byrom children and Anna Curtis etsablislied no title upon which they could recover the land, none of the plaintiffs could; and this without respect to the validity of their title, and the affirmative charge should have been given for the defendants. Reversed and remanded. McClellan, C. J., and Tyson and Simpson, JJ., concur.