Archer v. Tolleson, 8 Div. 628
| Decision Date | 09 October 1952 |
| Docket Number | 8 Div. 628 |
| Citation | 60 So.2d 853,257 Ala. 668 |
| Parties | ARCHER v. TOLLESON et al. |
| Court | Alabama Supreme Court |
Scruggs & Scruggs, Guntersville, for appellant.
Marion F. Lusk, Guntersville, for appellees.
This is an appeal from a decree overruling a demurrer to a bill in equity.
The bill alleges that John Olin Archer died intestate February 14, 1951. There has been no administration upon his estate and one is not needed (presumably because there are no unpaid debts). Complainants are alleged to be his sole heirs, and the defendant is his widow. That at the time of his death decedent owned and possessed a homestead, which is described, of two lots in the town of Boaz, valued at $8,000 and no other land, but had personal property also described. The personal property was distributed between the heirs by agreement, but the bill alleges defendant has failed to carry out the agreement as to certain items as to which relief is sought. That the homestead is located on the two lots as one parcel; that the dwelling alone is worth $4,700, and that the homestead, after being reduced to its lowest practicable area, exceeds in value $2,000. The bill makes no allegation of minor children. Presumably they were all of age when decedent died. Complainants are alleged each to own a one-fifth interest in the homestead subject to the dower and homestead rights of the defendant as the widow. It prays for a sale of the homestead and of the items of personal property not distributed; that the court fix and award to the widow an amount equal to the value of her dower and homestead rights and distribute the balance to complainants.
The equity of such bill has been sustained in a long line of cases, and is thus expressed in Childs v. Julian, 241 Ala. 249, 2 So.2d 453, 457:
Not mindful of those cases, appellant contends that the proceeding contravenes section 661, Title 7, Code. But section 661 does not apply to that situation in so far as the prohibition of a sale of the homestead is concerned. Such prohibition as there contemplated relates to the homestead when not exceeding the area and value fixed by law, but not in the process of allotment to such widow when the homestead reduced to its lowest practicable area exceeds in value $2,000. For then the whole of it may be sold as authorized by Title 7, sections 685, 686 and 687, and thus contemplated by section 662, Title 7, Code.
There is nothing in our statutes which prohibits the operation of the rules to which we have referred and often enforced, as stated in Childs v. Julian, supra.
In passing it is well to remember that the decedent in this case died on February 14, 1951. Section 661, supra, was amended November 1, 1950. See Act No. 58, General Acts, Special Session 1950, page 122. That amendment does not affect the question here involved. We note also that section 661 was amended by Act No. 911, approved September 12, 1951, General Acts 1951, page 1558. While that amendment creates a material change in section 661 and...
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Davis v. Davis
...That section applies only where the homestead does not exceed in value the sum of $2,000 and in area 160 acres. Archer v. Tolleson, 257 Ala. 668, 60 So.2d 853, 854. As we have shown above, the value of the suit property is in excess of However, the questions presented here require a conside......
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Beck v. Beck, 6 Div. 776
...to distribution of the proceeds of sale was reserved by the trial court and not the subject of review on this appeal. In Archer v. Tolleson, 257 Ala. 668, 60 So.2d 853, the decedent died intestate on February 14, 1951, leaving a homestead composed of two urban lots and a dwelling thereon, l......
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Young v. Seale, 1 Div. 678
...amended, were in effect at the time of Willie Lou Davis' death (Compton v. Cook, 259 Ala. 256, 259, 66 So.2d 176; Archer v. Tolleson, 257 Ala. 668, 669-670, 60 So.2d 853; Walker v. Hayes, 248 Ala. 492, 494, 28 So.2d 413, supra; Craig v. Root, 247 Ala. 479, 481, 25 So.2d 147) and provided as......
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Malone v. Jones
...246 Ala. 410, 20 So.2d 715; Cook v. Parker, 248 Ala. 393, 27 So.2d 779; Love v. Rennie, 254 Ala. 382, 48 So.2d 458; Archer v. Tolleson, 257 Ala. 668, 60 So.2d 853. Since some of the aspect of the cross-bill are not subject to any ground of demurrer addressed to the cross-bill as a whole, th......