107 Ala. 465 | Ala. | 1894
The appeal is prosecuted from a decree of the probate' court, setting aside the report of commissioners appointed to allot the homestead exemption to the widow of L. M. Turner, deceased. The sole question
We do not of course, overlook the case provided bisection 2544, where the decedent, at the time of his death, had no homestead, but that section has no application here, since it clearly appears the decedent actually had and occupied a homestead, which was exempt under the law. Nor is this construction at all in conflict with Dicus v. Hall,, 83 Ala. 159, nor with the subsequent case of Jaffrey v. McGough, 88 Ala. 648, recognizing it as correct, nor with the more recent case of Hodges v. Winston, 95 Ala. 514, decided upon its authority, and upon a similar state of facts. These cases hold that a disconnected tract, not contiguous to the tract upon which the dwelling is situated, but bona fide and habitually used as a part of it, may, by such use, become impressed with the homestead character, notwithstanding its remoteness or separation from the mansion house, but “this ruling has not been extended further than to embrace two parcels, already used and appropriated to homestead purposes where they together do not exceed the statutory area and valuation.” — Jaffrey v. McGough, supra. The doctrine of those cases is, not that actual occupancy may be dispensed with, in case other than that provided for by suction 2539, but that the connected use of the two disconnected tracts, under the peculiar circumstances there existing, constituted occupancy by the same person as one and the same homestead. This clearly appears from the language of Stone, C. J., in Beard v. Robinson, 87 Ala. 729, where in speaking of the ruling in Dicus v. Hall, supra, he says: The only question was, whether the detached parcels of land, collectively, not in excess of the limit, could be set apart as exempt, when they were shown to have been owned and occupied by the same person,
It is argued by appellant’s counsel that the use of the rents, from the hotel for the support of the decedent’s family, constituted such a connected use of the disconnected property, as to impress the latter with the homestead character. It was expressly decided in Kaster v. McWilliams, 41 Ala. 302, that while the renting of land may be a source of profit which contributes to the support of the family, yet that is not the sort of use intended; the statute'contemplating the use of the thing not of its profits-or of an income derived from it. That case has been repeatedly cited ' and its principle reaffirmed in our subsequent decisions, (Murphy v. Hunt, 75 Ala. 438 ; Lehman v. Bryan, 67 Ala. 558; McConnaughy v. Baxter, 55 Ala. 379), and is conclusive against the correctness of appellant’s contention. Our rulings are in accord with the general run of authorities elsewhere, which it would serve no useful purpose to cite. We refer merely to the case of Semmes v. Wheatley, (Miss.). 7 So. Rep. 430, decided upon substantially the same leading facts, as we find in the present record, where it was held that stores, owned by a debtor across a public road from his dwelling and rented to tenants who occupied them, formed no part of the homestead.
There is another principle equally conclusive against the appellant. As we said in Garrett v. Jones, 95, Ala. 96, whether a house and lot constitute a homestead “depends upon the character of the building and the uses to which it is adapted and to which it was devoted;” and we there declared, following the case of Laughlin v. Wright, 63 Cal. 113, and' other authorities, that “the owner of an hotel, erected for and adapted to the purposes of public entertainment, would not have homestead therein though he resided there with his-family.” The proof shows that the building situated on what is called the hotel lot, was built for a hotel and has ever since been used for such purpose. If the decedent had resided there, and had conducted the business for ■which it was intended, with his residence therein but a mere incident to the business, it would not have been his exempt homestead. It would be very strange indeed, if his condition and that of his widow should be . more
The decree of the probate court, being m accord with these views, was correct, and must be affirmed.
Affirmed.