62 So. 75 | Ala. | 1913
Lead Opinion
The single question presented for review is: Did the law in force January 26, 1886— treating of homestead exemptions to the widows and minor children of decedents — vest, without action of the probate court of the county, an absolute title in widows and minor children in real estate occupied as a homestead, by husband and father at the time of his death, when such real estate was within the law’s provisions wdth respect to the value and area thereof as affording the condition to the right of homestead exemptions?
The law in force, on January 26, 1886, in this state on that subject, was the act approved February 12, 1885 (Acts 1884-85, pp. 114, 115). The act adopting the Code of 1886 was approved February 28, 1887 (Acts 1886-87, p; 47). The law in force and effect at the time of the death of the husband and father is the law whereby homestead rights are determined. — O’Rear v. Jackson, 124 Ala. 298, 26 South. 944.
In the first section of the act (approved February 12, 1885), the beneficiaries of the exemption were specified, and provision was made for the appointment, by the probate court, of commissioners “whose duty it shall (should) be to make a complete inventory of personal property so exempt, and set apart * * * all of the personal and real property exempted” to the widow and minor children. The second section provided: “Be it
This court, in Smith v. Boutwell, 101 Ala. 373, 13 South. 568, delivered at the term 1892-93, construed this particular act as establishing, by the words we have above italicized, the necessity that proper proceedings, consonant with the prescription of the act, should be had as a condition precedent to the investment of the absolute title in the beneficiaries of the homestead exemption there provided. After quoting the important part of section 2, which is quoted above, it was said: “Prior to its enactment, it was necessary that the estate be judicially declared insolvent, before an absolute estate passed to the widow, or minor child. Under the act of 1884-85, if the homestead did not exceed 160 acres and $2,000 in value by proper proceedings, the estate vested absolutely, whether solvent or insolvent.” (Italics supplied.)
We would not feel justified — even if disposed to take a different view, in this particular, of the act of 1884-85 — in disturbing the rule of property established by this decision, unquestioned for 20 years. It may be said, however, that, in addition to the language (italicized)
Under the act of 1884-85 the court attained and enforced, in its ruling on demurrer, the correct conclusion. In this instance no proceedings, to set aside the homestead exemptions according to the provisions of that act, having been had, the widow and minor child were not invested with the absolute title to the land in question.
The decree is affirmed.
Affirmed.
Rehearing
ON MOTION FOR REHEARING.
In brief and argument submitted with appellant’s application for rehearing, it is insisted that the ruling of this appeal “strikes down a rule of property that has been consistently adhered to by this court for over 20 years, as enunciated and approved in the following-cases: Hodges v. Hodges, 172 Ala. 11 [54 South. 618];
Aside from Gamble v. Kellum, ante, not one of the above-cited decisions involved the Act of February 12, 1885 (Acts 1884-85, pp. 114, 115). Not having interpreted nor undertaken to interpret that act, those decisions did not establish, and could not have established, a rule of property in respect thereto. — Gamble v. Kellum did concern the act of 1884-85, but as affecting only the right of the widow to personal property. That and Smith v. Boutwell, 101 Ala. 373, 13 South. 568, are the only deliverances here in which the Act of February 12, 1885, was the positive law involved. The Act of December 13, 1892 (Acts 1892-93, p. 138; Code 1896, § 2071),'was different in phraseology from the Act of February 12, 1885, and in the opinion in Smith v. Boutwell was, as readily appears, interpreted to a different effect in respect of real property subject to exemption.
It is urged for the applicant that what was said in Smith v. Boutwell in interpretation of the act of 1884-85 was dicta. This contention is unsound. The action was ejectment brought by the heirs of John Boutwell against the grantees and heirs of Martha Boutwell, who was the widow of John Boutwell. The agreed statement of facts showed that the land in dispute was the homestead of John Boutwell at the time of his death (Feb
This question necessarily required for its correct solution the interpretation of the act of 1884-85, and so the court there concluded and undertook the performance of that duty. It could not determine the sufficiency of the petition, there raised and determined, without first deciding that a petition was essential. If a petition and consequent proceedings were, under the facts there present, wholly unessential to the vesting of the fee in the widow, to the homestead, less in area and value, than the maximum fixed by the act, obviously the court would have dismissed the point pressed by appellee and have based the conclusion upon considerations which find expression in the cases cited (as • before noted) for the applicant. Manifestly, the validity of a proceeding, with respect to its regularity or to the power of the tribunal undertaking to pronounce therein, can never be considered or determined without first ascertaining what is requisite to a valid proceeding of that nature, including the jurisdiction so to do.
The application for rehearing is denied.
