66 So. 29 | Ala. | 1914
J. K. P. Hollis and T. C. Hollis were tenants of a tract of land containing something less than 1,000 acres. They were brothers, and each was married. J. K. P. Hollis was without children, but T. C. Hollis was the father of seven. The relations between the families were evidently pleasant, because, for a long period of years, the two families lived in harmony upon the said property. In fact, all of the children of T. C. Hollis appear to have been born on this land, and some of them were of lawful age when T. C. Hollis died.
There were two residences and separate settlements on the land. One of these residences was occupied by J. K. P. Hollis and his wife, Mattie Hollis. The other residence was occupied by said T. C. Hollis and his wife, Susie Hollis, and their children. The two families cnl
1. The widow and heirs of T. C. Hollis and the widow and heirs of J. K. P. Hollis, in tMs proceeding, upon the facts of this case, and under its peculiar equity, piust be treated as if the heirs of T. 0. Hollis and th-e heirs of J. K. P. Hollis were not the same individuals. As to this land, when T. C. Hollis died, his widow and his heirs stood in his shoes. They were, in so- far as this land is concerned, invested with the same legal and equitable rights that the said T. C. Hollis had in them while he lived, no more and no less. They were entitled, just as T. C. Hollis was entitled, to- have these lands
The facts of this case bring it squarely, almost literally, within the doctrine which was recently declared by this court in Upshaw, et al v. Upshaw, et al., 180 Ala. 204, 60 South. 804. In that case this court said: “The fact that said John R. Upshaw and A. W. Upshaw both died before any partition of the land was made, or before the. lands were sold for the purposes of distribution, cannot, we think, affect that right which followed the lands into the hands of the heirs and widows of the respective parties. The widow and heirs of John R. Upshaw stand in his shoes, and the widow and heirs of A. W. Upshaw stand in his shoes. If the 450 acres of land can be equitably divided so as to give the heirs of John R. Upshaw in severalty two-thirds of said land in acreage and value, and the heirs of A. W. Upshaw in severalty one-third of said land in acreage and value, then, by appropriate proceedings, this can be done, and the homestead of each widow can be set apart and the dower of each can be properly assigned by metes and bounds out of the lands so set aside to each set of heirs.”
In this case, when T. C. Hollis died, a right of 'do wer and homestead immediately, in his widow’s favor, attached to an undivided moiety in said lands. At that time, undoubtedly, upon appropriate proceedings, a court of equity could have divided the land into two equal parts, and out of the part alloted to the widow and heirs of T. C. Hollis could have set apart to the widow her homestead and dower.—Upshaw v. Upshaw, supra. Indeed,, when this bill was filed, one of the children of T. C. Hollis was a minor, and he was not only peculiarly within the protection of a court of equity, but also' of our statutes securing the rights of homestead.
The rights of Susie Hollis to homestead and dower in the lands attached eo instanti upon the death of the husband, and while, since that time, J. K P. Hollis has
The bill in this case Avas filed by Della Watkins, Avho is one of the children of T. C. Hollis, and AVho is also an heir of her uncle, J. K. P. Hollis, and in the bill she prays that all of the lands be sold for distribution. In our opinion, as the lands can be equitably divided into two parts, Susie Hollis, the widow of T. C. Hollis, is entitled to have set apart to her, out of said lands, a homestead. This homestead should, of course, include the house which Avas occupied as a residence by T. C. Hollis when he died.
She is also entitled to have her dower assigned to her by metes and bonds. Mrs. Hattie Hollis, widoAV of J. K. P. Hollis, has in writing consented for the lands to be sold, and has consented to receive, in lieu of heir homestead and dower rights, a sum of money equal in amount to the value of such homestead and dower rights. As the lands can be divided — as shown by all the evidence — into two equal tracts, and as the children of T. C. Hollis now own, subject to the dower and homestead rights of the two widows, all of the land, an actual partition of the lands is now unnecessary. The entire equity of the situation can be met by setting aside the homestead of Mrs. Susie Hollis, as above indicated, and by setting aside to her, by metes and bounds, as dower, a sufficient amount of land, in acreage and value, as will represent her estate for life as doweress in the remainder of the land, which is an undivided one-sixth interest for life in said land. After this has been done, the remainder of the land can then be sold for division between the widow of J. K. P. Hollis, who has given her written consent to the sale, and the children of said
4. For the above to be effectuated, the pleadings in this case must be amended. The bill can, if the complainant sees proper to amend it, be amended so as to meet the situation presented by the evidence. If she does not do so, then Mrs. Susie Hollis or some of the other respondents can, by filing a cross-bill, obtain the needed relief. While Mrs. Susie Hollis has shown no diligence in the matter of the assignment of her dower or in the matter of the setting apart of her homestead, her answer shows — and the evidence sustains the answer on that point — that she is entitled in equity to a homestead in the land and to an assignment of her dower by metes and bounds.
It is the policy of the law to settle upon the widow the house which her husband occupied as his residence for her natural life, and it gives her money in lieu of the house only when the house cannot be given to her.
It is also the policy of the law to give her, as her dower, a life estate in one-third part in acreage and value of the lands of which her husband died seised and possessed, and not to give her money in lieu of this land when the land itself can be allotted to her.
While Mrs. Susie Hollis did not, by a cross-bill, seek the relief to which, under the facts shown in this case, she is entitled, she did by her answer show a situation— and the answer on this point, as we have said, is supported by the evidence — which shows that the complainant is not now entitled to a sale of all the lands describ
The decree of the court below is therefore reversed, and the cause is remanded for further proceedings therein.
Reversed and remanded.