Coker v. Coker

49 So. 684 | Ala. | 1909

DENSON, J.

This is an appeal from a decree of the probate court of St. Clair county, confirming the report of commissioners, allotting 40 acres of land, to the widow of a deceased owner as exempt to her under section 4197 of the Code of 1907. Assuming that the record properly presents the question for review, the sole question for determination is whether a widow, who had lived apart from the husband for two years or more prior to his death, but between whom and the husband there had been no dissolution of the martial relations, is entitled to a homestead exemption.

We regard the question as being ruled in the affirmative by the decision in the case of Nolen v. Doss, 133 Ala. 259, 3 ISouth. 969. It was there urged, upon the grounds made the basis of the contention in this case, that the widow was not entitled to share in the distribution of the husband’s personal estate. The court, speaking through the present Chief Justice, said: “The law as. it is written is plain, and it is not within the province of the court to ingraft upon it any exceptions. As long as the martial relation in law continues, just so long the rights of the wife under this statute exist.” The principle is the same in respect to the rights of the widow to have realty of the husband exempt to her. The statute does not make separation terminate the widow’s right, and it would be judicial legislation if the courts should do so.

There is no error in the decree, and it is accordingly affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.