Mathews v. Goodenough
89 So. 708
Ala.
1921
Check Treatment
ANDERSON, C. J.

[1] The evidence shows that the land in question was the homestead of the respondent’s father when he died in 1910. Hence this case is controlled by the Code of 1907. There was no proof that the estate was ever declared insolvent so^ as to vest the title to the land absolutely in the minor children under section 4196 of the Code of 1907. It does appear, however, that the father left no widow, and that all of his heirs, or children, were minors when he died, and, as all of the land left was less in area and value than the exemption provided by law, the title to the land in question vested absolutely in said minor children under section 4198 of the Code, notwithstanding the same may not have been judicially ascertained and set apart. In the case of Miles v. Lee, 180 Ala. 439, 61 South. 915, in construing section 4198 of the Code of 1907, we noted that the rule as laid down in Haircloth v. Carroll, 137 Ala. 243, 34 South. 182, and similar cases, did not now obtain, since the change was made in said section 4198, notwithstanding the homestead contained all of the decedent’s real estate, and which was less in value and area than fixed by law — that the title vested in the widow and minor children, or either, only as against creditors of the father, and not against the heirs until the homestead had been judicially ascertained and set apart. It appears, however, in the present case, that all of the heirs were minors at the death of their father, and under the terms of section 4198, the title vested in them absolutely.

[2] This was the homestead exemption notwithstanding the title vested absolutely in the minor children and section 4196 of the Code of 1907 in part says—

“and shall not be sold or partitioned by order of any court until the death of the widow and the youngest child is of age, except by the order of the chancery court for reinvestment with the consent of the widow in writing, if living.”

This quoted provision from section 4196 first appears in the Code of 1907, and while it follows immediately that portion of the old provision vesting the title absolutely in case the estate is declared insolvent, we do not think that it should be so narrowly construed as to convict the lawmakers of making a discrimination in protecting the widow and minor children by safeguarding their shelter only when it vests in them absolutely because of the insolvency of the estate, and not doing so when it vests absolutely in them because less in area and value than the exemption fixed by law. Indeed, this quoted provision from section 4196 has been heretofore construed by this court in the case of Clements v. Faulk, 181 Ala. 219, 61 South. 264, as forbidding the sale or partition of the homestead, which vests absolutely in the widow and minor children, or either, during the life of the widow or minority of the children, except by the chancery court for the purpose of reinvestment. It is true the opimion in the case supra, mentions homesteads which do or do not vest absolutely because of the solvency or insolvency of the estate, but it further demonstrates and emphasizes the fact that this provision was intended to prohibit a sale or partition of the homestead when the title vested absolutely, whether by insolvency of the estate or otherwise, except *231 in the manner and form there provided. See paragraph 2 of said opinion. Morover, if the Clements Case, supra, was not an authority for this holding, as an original propo-. sition, we would hold this to be the only just and reasonble interpretation of said quoted provision.

[3] As section 4190 deals specially with the homestead exemption and a sale thereof, article 3 of chapter 121, p. 1144, of the Code of 1907 must relate to the sale of lands held or owned by minors other than the homestead exemption. We therefore hold that the sale by the guardian and the proceeding to confirm the same under article 3, chapter 121, of the Code was unauthorized, and is null and void, and the trial court properly held that the complainants had no title or claim to the interest of the four respondents in said land, and properly canceled the deeds purporting to convey their said interest.

The proceedings in the probate court, being unauthorized, cannot, of course, operate as an estoppel against these respondents from setting up the invalidity of the deeds.

The decree of the circuit court is affirmed.

Affirmed.

McClellan, somerville, and thomas, JJ., concur.