Thornton v. Thornton

45 Ala. 274 | Ala. | 1871

B. F. SAFFOLD, J.

The appellant applied to the probate court to set apart to her five hundred dollars worth of the lands belonging to the estate of her deceased husband, under the provisions of section 2061 of the Revised Code. She does not allege that the estate is insolvent, but claims the land exempt from the claims of heirs, distributees or legatees, as well as from the payment of debts. It was proven on the trial that the estate was not insolvent, and that a decree of the probate court had been made allotting dower to petitioner, but its execution had not been reported. The court dismissed the petition.

Under section 2061, the widow, if there be no children under twenty-one years of age, as in this case, is entitled to as much as five hundred dollars worth of the lands of her husband exempt from the payment of his debts, whether his estate is insolvent or not; but it is not exempt from the claims of heirs or distributees, unless the estate is insolvent. The quantity of a widow’s dower interest, when there are lineal descendants, is one third part of the lands, whether the estate is insolvent or not. This is the largest quantity which she can obtain against the heirs, except in case of insolvency.

The decree is affirmed.