103 Ala. 614 | Ala. | 1893
Under the law which existed at that time, (section 2821 of the Code of 1876), such a homestead and the personal property were exempted from the payment of debts, contracted after 1he 23d of April, 1873, in all cases during the life of the widow, and the minority of the child, — the personalty to be delivered to the widow, to be employed by her in the maintenance of herself and her minor child, and tiie homestead exempted for their benefit, to be retained by the widow, until it was ascertained whether the estate was solvent or insolvent; and, if the estate was insolvent, it vested in her and her child absolutely. — Code, 1876, §§ 2826, 2827. The ascertainment of insolvency contemplated by the statute, was a regular declaration of insolvency by proceedings in the probate court, — judicial ascertainment according to the statutory practice regulating such a proceeding.— Munchus v. Harris, 69 Ala. 506 ; Baker v. Keith, 72 Ala. 121; Smith v. Boutwell, 101 Ala. 373; De Armond v. Whitaker, 99 Ala. 252.
As further corroborative of such a purpose, Mrs. Kilgore, on the 17th day of April, 1893, executed and delivered to her son, the defendant, a fee simple conveyance of said homestead lands, which, as she therein declares, had been set apart to her, l(as a homestead in the estate of my [her] late husband, which said estate by the decree of the probate court of Walker county has been duly declared insolvent.”
And it is conceded by counsel for appellees, that if this bill had no other foundation to rest upon, than being an application to the court of equity to sell the lands described; for division or partition, it can not be maintained. It is also conceded by them, that if the appellees had a plain and adequate remedy at law, to recover the lands from the defendant, it can not be maintained; but, in either case, as is claimed, if the bill will lie on some other equitable ground, the court will entertain it for that, and all other purposes, not rendering it multifarious .
The motion to dismiss the bill for want of equity was properly overruled, and the decree of the court below is affirmed.