42 Ala. 315 | Ala. | 1868
The appellant, upon the facts set forth in her petition, is entitled “to real estate of the value of five hundred dollars,” as against the creditors of the estate. Code, § 1738 ; Chisholm v. Bowden, in MS., at June term, 1867. The Acts approved January 30,1860, (Pamph. Acts, p. 18,) and December 9, 1864; (Pamph. Acts, p. 93,) and February 19, 1867, (Pamph. Acts, 710,) do not affect the rights of the widow to such real estate, (if the husband owned land to that value,) as against the debts of the estate. They only affect her right against “heirs, distributees or legatees.”
But the second section of the Act of the 9th December, 1864, changes the remedy or mode of enforcing her right, and provides the manner in which the judge of probate “shall proceed to lay off and set apart said land in accordance with said section.”
If the judge of probate does not so proceed, it is allowable for the widow to file a petition, as in this case, to enforce the right conferred by the statute, and it is the duty of the court to proceed, and it cannot repudiate or reject the petition.
The probate court, therefore, erred upon this record, in dismissing the petition of appellant.
It results that the decree of the probate court must be reversed and cause remanded.