123 Ala. 541 | Ala. | 1898
-This is a statutory action of ejectment brought by appellees against appellant. The appellees, plaintiffs in t]ie court below, claimed- as heirs at law of John Burleson, deceased, the common' ancestor of plaintiffs and defendant, and sued to recover an undivided interest in the lands described in the complaint. The defendant relied upon a deed executed to her by Kizzie Burleson, widow of John Burleson; The undisputed facts as shown by the bill of‘ exceptions are, that John Burleson was the common ancestor and died in possession of the land in question, that the same was his homestead, and in area less than 160 acres and in value less than $2,000, and was all the land he owned; that his personal property was less than $1,000 in value; that he left no debts and no administration was ever had on his estate; he left surviving him a widow, Kizzie Burleson, but no minor children; that the widow continuously occupied said homestead to the date of her death which occurred in December, 1897.
The-widow Kizzie Burleson filed her petition with the probate judge of Franklin county on the 27th day of November, 1895, to have said homestead set apart to her, in which said petition it is averred, among other things, that the said John Burleson died June 15th, 1887. The proceedings had on said petition were-in all respects regular as provided by the statute, and on the 18th of January, 1896, the probate judge of said county made an order setting apart said homestead to said widow.
The only dispute in the evidence was as to the date of the death of John Burleson. The evidence of plaintiffs tended to show that he died on the 15th of June, 1888, Avhile that of the defendant tended to show -that he died in 1887.
It was averred in the application filed by the widow in the proceeding to set apart the homstead that the said John Burleson died on the 15th of June, 1887, and it is contended by the appellant that the court below erred in permitting evidence by the plaintiffs tending to show that said Burleson died on the 15th day of June. 1883, for the reason, that it was a collateral attack of
The acts of February 12th, 1885, (Acts, 1884-85, p. 114), and the act of February 28, 1887, (Acts, 1886-87, p. 112) amendatory thereof, which provide for setting apart homestead to the widow of a decedent, by' express terms, is made applicable to estates of decedents who have died prior to the enactment of the statute as well as those dying subsequent to its passage. There can be no doubt of the power of the legislature to pass laws governing and regulating the descent of property in cases of intestacy, and also to provide for homestead and exemption and the manner of setting apart the same. The power of the legislature in this respect can only be limited by constitutional provision. — Smith et al. v. Boutwell et al., 101 Ala. 373. Prior to the act of February 12, 1885, the widow of the decedent took only a life estate in the homstead set apart to her, except in cases where by decree of the probate court the estate was ascertained and declared insolvent, in which event the absolute title to the homestead vested in the widow, or widow and minor children, or minor child or children as the case may be. Subject to these statutory provisions upon the death of the ancestor intestate, eo mstanti, the legal title to the real estate descended to and vested
Our conclusion is, that if John Burleson died in June, 1883, Avhich Avas prior to the act under Avhich the proceedings were had in the probate court to set apart the homestead, the absolute fee to the land in question descended to his heirs at law subject to the widoAv’s homestead in the same, Avhich was only a life estate under the then existing statute as to homestead, there having been no administration on the estate, and ascertainment of insolvency. There Avas no error in the charge given by the court and excepted to by defendant, nor "in the refusal of the charge requested by defendant.
There is no error in the record, and the judgment of the circuit court must be affirmed.
