Waters v. Gadsden-Ala. C. L. Co.

McCLELLAN, J. The single question presented for review is: Did the law in force January 26, 1886— treating of homestead exemptions to the widows and minor children of decedents — vest, without action of the probate court of the county, an absolute title in widows and minor children in real estate occupied as a homestead, by husband and father at the time of his death, when such real estate was within the law’s provisions wdth respect to the value and area thereof as affording the condition to the right of homestead exemptions? The law in force, on January 26, 1886, in this state on that subject, was the act approved February 12, 1885 (Acts 1884-85, pp. 114, 115). The act adopting the Code of 1886 was approved February 28, 1887 (Acts 1886-87, p; 47). The law in force and effect at the time of the death of the husband and father is the law whereby homestead rights are determined. — O’Rear v. Jackson, 124 Ala. 298, 26 South. 944. In the first section of the act (approved February 12, 1885), the beneficiaries of the exemption were specified, and provision was made for the appointment, by the probate court, of commissioners “whose duty it shall (should) be to make a complete inventory of personal property so exempt, and set apart * * * all of the personal and real property exempted” to the widow and minor children. The second section provided: “Be it [287] further enacted, that it. shall he the duty of such commissioner to return into the probate court a complete inventory of all the personal property with a fair valuation of the same and a true description by metes and bounds of all the realty set apart by them to such widow or minor child or children, which report shall be verified by the affidavit of such commissioners, and upon the confirmation and approval of such report by the probate judge, all the title, rights, privileges and immunities to such property shall vest m such loidoiv, or such widow and minor child or children, or minor child or children, as completely and fully as if said estate had been regularly administered upon and declared insolvent.” This court, in Smith v. Boutwell, 101 Ala. 373, 13 South. 568, delivered at the term 1892-93, construed this particular act as establishing, by the words we have above italicized, the necessity that proper proceedings, consonant with the prescription of the act, should be had as a condition precedent to the investment of the absolute title in the beneficiaries of the homestead exemption there provided. After quoting the important part of section 2, which is quoted above, it was said: “Prior to its enactment, it was necessary that the estate be judicially declared insolvent, before an absolute estate passed to the widow, or minor child. Under the act of 1884-85, if the homestead did not exceed 160 acres and $2,000 in value by proper proceedings, the estate vested absolutely, whether solvent or insolvent.” (Italics supplied.) We would not feel justified — even if disposed to take a different view, in this particular, of the act of 1884-85 — in disturbing the rule of property established by this decision, unquestioned for 20 years. It may be said, however, that, in addition to the language (italicized) [288] of the act wherefrom it was concluded in Smith v. Boutwell, supra, that “proper proceedings” were a condition to the vesting of the absolute title in the bened claries, section 1¡. of the act appears to make provision for a tenure of the property by the widow or guardian pending the proceedings prescribed for setting aside the exemption to those entitled thereto. This provision for tenure, pending the setting aside of exemptions, is obviously inconsistent with the view, prevailing under other statutes, that the chief, if not only, office of the proceedings prescribed by those statutes, was to effect selection — a process entirely unnecessary where the subject of the exemptions was less in value, and in area if land, than the statutes prescribed. Under the act of 1884-85 the court attained and enforced, in its ruling on demurrer, the correct conclusion. In this instance no proceedings, to set aside the homestead exemptions according to the provisions of that act, having been had, the widow and minor child were not invested with the absolute title to the land in question. The decree is affirmed. Affirmed. Dowdell, C. J., and Sayre and Somerville, JJ., concur.