126 Ala. 280 | Ala. | 1899
The tract of land sued for, comprising thirty-eight (38) acres, was owned by the wife of the defendant at the date of her death in May, 1897. It was her homestead at that time and had been since 1893, and was all the land owned by her. Its value did not exceed $500, and her personal property at the time of her death was of less value than $1,000. She left surviving her only one child, an infant, about three or four
It is apparent from a casual reading of the language of the act above quoted, that there is nothing which supports the contention that a minor child whose mother dies leaving a husband is not within its provisions so as 'to enjoy the benefits conferred by it, and that only those children whose mothers are widows at the time of her death are included. Such a construction would not only do violence to the plain words used, hut would in a measure strike down the spirit and policy of the enactment.
Nor is there any merit in the proposition, that the infant acquired no title to the land in controversy, because it was not set apart and appraised in a proceeding instituted for that purpose. This land being the homestead of the mother, and being all the land owned by her at the time of her death, and its value not exceeding $5(10, no proceeding was necessary to have it set apart and appraised. “The law intervenes in such cases
This land being exempt to the infant was to lie held by it as is provided in the act of December 13, 1892. Under that act (Acts, 1892-93, p. 138; Code, § 2071), whenever the estate of a decedent who dies leaving an estate less in value than the amount exempt by law, •either real or personal property, or both, the title to such property vests absolutely in fee in the widow or ■widow and minor child or minor children. So then, the infant acquired c,o insta nt-i upon the death of its mother, an absolute fee simple title to the land involved in this suit. When the infant died, the defendant, its father, became the owner in fee of the tract, under the statute of descent and distributions, freed from all debts of his deceased wife and from administration. The affirmative charge requested by the defendant should have been given.
Reversed and remanded.