Norton v. Norton

Nov 15, 1891
Versions:94 Ala. 481
CLOPTON, J.

— E. T. Norton was appointed, in September, 1887, administrator of the estate of John J. Norton, by the Probate Court of Barbour county. In November thereafter, Josephine Norton, the widow of. the decedent, sold and, conveyed to Henry T. Norton, one of the heirs, all her right, title, interest and claim, in and to the real property of her deceased husband, including the homestead, and moved off the land; Henry T. Norton entering into 'possession under his purchase. No assignment of dower has ever been made. E. T.Norton, having been removed from the administration, *484filed in the Probate Court an account for final settlement, which was contested by the heirs. Thereupon, he filed the bill for the purpose of removing the settlement of his administration into the Chancery Court. Henry T. Norton, whose cross-bill had been dismissed without • prejudice, filed ' an original bill setting forth his purchase of the dower interest and the widow’s conveyance thereof, and basing thereon a prayer for a decree to the effect, that he -is entitled to dower, and also to all the rents of all the lands of the decedent. By agreement of counsel both suits were heard together, and one decree rendered.

It is well settled, that to authorize the removal of the settlement from the Probate to the Chancery Court, on the application of the administrator, there must arise some question or matter which the Probate Court, by reason of its limited powers, is incompetent to determine. When, however, a special equity exists, there can be no sufficient reason why the final settlement of a removed administrator may not, on his application, be. transferred to, and made in the Chancery Court. Though his office and functions as administrator are terminated by removal, he is required to make final settlement of his administration, which should be made in a court having jurisdiction and power to determine and adjust all the equities arising thereon. The ascertainment of the amount of rents to which the heirs and the widow, or her assignee, are respectively entitled, is preliminary and essential to a full and complete settlement of the administration. It is well settled, that the Chancery Court has exclusive jurisdiction to award to the widow rents or mesne profits between the death of her husband and the assignment of dower.— Wood v. Morgan, 56 Ala. 397. No objection having been made during the pendency of the suit to the bill, on the ground that the administrator has no right to remove the settlement into the Chancery Court, and as the bills and all the pleadings show that questions arise which should be determined before the final settlement is completed, of which the Chancery Court has exclusive jurisdiction, and as the parties agreed that the two suits should be submitted and heard together, and a decree rendered settling all the equities of all the parties in both suits, we shall not regard such objection, made for the first time in this court.

No objection is urged to the execution of the order for the sale of the lands, made by the Chancery Court, or to the payment to II. T. Norton of a fair equivalent for the dower interest out of the proceeds of the sale, in lieu of an assignment of dower by metes and bounds. The main point of contention *485is, whether H. T. Norton is entitled, by virtue of his purchase of the dower interest, to one-sixth of the proceeds of the sale, and to the rents of all the lands, including the homestead. ■ Appellants concede that he is entitled to one-sixth of the proceeds of the sale, and one-third of the rents of the lands, exclusive of the homestead..

The statutes confer on the widow the right to retain possession of the dwelling where her husband most usually resided next before his death, with the offices and buildings appurtenant thereto, and the plantation connected therewith, free from the payment of rent, until her dower is assigned; also, to have set apart the homestead, not exceeding in value two thousand dollars, and in area one hundred and sixty acres, as exempt from administration and the payment of debts; and dower of all lands of which the husband was seized in fee during coverture. — Code, §§ 1892, 1900, 2543. These rights are essentially distinct, and different incidents attach. The widow’s quarantine is a personal right or privilege — the right to the use and occupation of the property by herself or tenants, until dower is assigned. This right is not an estate in the land, which can be sold under execution at law. or alienated; it terminates whenever the widow deprives herself of the right to dower by release to the heir, or in any other manner. — Boynton v. Sawyer, 35 Ala. 497. Not being-alienable, the transferree of her dower interest can base no claim to all the rents of all the lands on her right of quarantine.

Neither can such claim be founded on the widow’s conveyance of the homestead. The statute exempts the homestead in favor of the widow and minor children, if any, in any event, during the life of the widow, or the minority of the children, which ever may last terminate; and if there be ho minor children, the rents and profits of such homestead enure to the benefit of the widow during- her life. The statute, having the beneficent purpose of furnishing the widow a home, confers the right of occupancy as a dwelling-place during her life. Under the law as it was at the time of the alienation of the dower interest, she may abandon it, and acquire a new homestead; but she could not convey or incumber it. In Barbour v. Williams, 74 Ala. 331, it is said: “The abandonment works a destruction of her privileges, and as she has no power of alienation, if she does alien it, like the alienation of her right of dower before assignment, the descent to the heir is not intercepted, and he may maintain ejectment against her alienee, or those entering under him.” By her removal from the homestead after alienating it, the widow forfeited the *486rents and profits which enure to her benefit under the statute, and her alienee acquired no claim thereto by virtue of her conveyance to him. The rights of the parties are not affected by the act of February 23,1889, “For the protection of widows and minor children.” The second section applies to homesteads previously set apart, but not abandoned at the time of the passage of the act. — Acts 1888-9, p. 113.

It may be, that when a homestead has been set apart to the widow — being a larger use and enjoyment during her life' — the right of dower and its allotment are in abeyance, but the right is not thereby extinguished. As we have said, she is, under the statute, do wable of all the lands of which her husband was seized in fee during the marriage. On her abandonment of the homestead, if it has been set apart, her right to dower in the premises so set apart becomes operative, the same as if no .homestead had been selected and set apart. In this case, however, no homestead was set apart; the order of the Probate Court being void for want of jurisdiction. — James v. Clark, 89 Ala. 606. The alienation oí the homestead being void, Henry T. Norton, the complainant in the second bill, is only entitled to the rents or mesne profits to which the widow would have been entitled had she abandoned the homestead without convejdng her dower interest. In such cases, she would have been entitled to one-sixth of the proceeds of all the lands including the homestead, and to one-third of the rents of all the lands of which she is dowable, from the death of her husband to the assignment of dower. The decree is in accord with these views.

The assignment of error, that the chancellor in the decree does not require Henry T. Horton to account for the rents during his possession of the premises, is not well founded. The decree, as we understand it, requires him to account for them.

The decree is affirmed on the original appeal. Henry T. Norton takes nothing by the cross-assignment of error.

Affirmed.