Chambers v. McPhaul

55 Ala. 367 | Ala. | 1876

MANNING, J. —

The only provisions of law that secure to the family of a deceased person, or to bis widow or children, a homestead right, are contained in sections 2, 3 and 5 of article X in the present constitution (the same as sections 2, 3 and 5 of article XIY of the constitution of 1868), or in the “act to regulate property exempted from sale for the payment of debts,” approved April 23, 1873;” at least, these are the only enactments which are applicable to the case now before us.

Whatever doubts and ambiguity may be created by the language in section 2 of those articles, concerning the option a resident owner may have in the selection of his homestead property, do not pertain to the sections of either the constitution or the statute which authorize the retention of the homestead for the benefit of the widow or children. That must be the place which is the actual homestead — -the property occupied as such — and not exceeding the quantity prescribed. The option is not allowed to them of taking other property in its stead. — See Kaster v. McWilliams, 41 Ala. 302.

If it be thought that the law is, therefore, unequal, and hard upon families that, like the one concerned in this • case, live on mortgaged property, which may be taken away from them, or on property held by lease only, while there remains other property to which the title is perfect, and which would constitute a good home, the remedy must be sought of the legislature. The office of courts is to administer the law, not to make it.

In this case, the property in question not having been the homestead of the deceased, Mr. Chambers, or of his family, the Probate Court did not err in dismissing the petition of appellants to have it allowed to them as such; and its judgment is affirmed.