Dickinson v. Champion

MAYFIELD, J. H. W. Emfinger died intestate, leaving a widow and no minor children. All of the land he owned was a homestead of 120 acres. This was duly set apart to the widow, as provided by section 2097 et seq. of the Code of 1896. It was reported and appraised at $1,200, which report and appraisement was fully confirmed by the probate court, and set aside to the widow as exempt, thus vesting in her an absolute title thereto, as provided by section 2100 of the Code of 1896. The widow subsequently sold the lands to appellees, and the appellants (granchildren and heirs of the intestate) brought this action of ejectment to recover the lands. On the trial appellants objected to the introduction of the proceedings in the probate court setting aside the homestead to the widow, on the ground that they, the. heirs at law, were not made parties to the proceedings. This objection was overruled, and they excepted. They then offered to prove that the land was worth $25 per acre at the time of the death of the intestate; but the court declined to allow this proof. In consequence of these adverse rulings, the plaintiffs (appellants here) took a nonsuit, with a bill of exceptions. There was no reversible error in any of the rulings of the trial court. If the lands were worth less than $2,000, they vested absolutely in the widow by virtue of the statute, without any proceedings to set the same [615] aside as a homestead to the widow.—Tartt v. Negus, 127 Ala. 301, 28 South. 713; Faircloth v. Carroll, 137 Ala. 243, 34 South. 182. The proceedings in the probate court, setting aside the homestead, could not be assailed in a collateral proceeding between these parties. If the •lands should be conceded to be worth more than $2,000, thereby preventing the vesting of an absolute and fee-simple title in the widow, a life estate certainly vested in her; and, it not appearing that the widow is dead, of «course, the plaintiffs could not recover in any event. It follows that the judgment of the circuit court must be affirmed. Affirmed. Dowdell, O. J., and Simpson and McClellan, JJ., (concur.