Boozer v. Boozer
Decision Date | 24 February 1944 |
Docket Number | 8 Div. 259. |
Citation | 16 So.2d 863,245 Ala. 264 |
Parties | BOOZER et al. v. BOOZER. |
Court | Alabama Supreme Court |
Proctor & Snodgrass, of Scottsboro, for appellants.
Hayes & Weeks, of Scottsboro, for appellee.
This appeal is from a decree setting apart a homestead to appellee as the widow of John Henry Boozer, deceased, pursuant to § 694, Title 7, Code of 1940, § 7948, Code of 1923. The pertinent part of the petition is as follows:
Appellants take the position that the petition is fatally defective because it lacks, among other things, the jurisdictional allegation that the property does not exceed in value the exemption allowed in favor of the widow. Appellee argues that the averment "that the above described real property does not exceed the amount exempted to the widow as provided under the laws of this State" is jurisdictionally sufficient on the theory that the word "amount" refers to and includes both amount in value as well as amount in area. In the light of the statute, as construed by the decisions of this court, the position of appellants is correct. The word "amount" in the statute deals with area and not with value. The petition must be determined by the statute under which it is brought.
§ 694, Title 7 of the Code reads as follows: "When the property, real and personal, owned by a decedent at the time of his death, does not exceed in amount and value the exemption allowed in favor of his widow," etc.
Examination of the constitutional provision (§ 205 of the Constitution of 1901) and the statutes dealing with homestead rights of which § 694 is a part (§ 625 et seq., Title 7, Code), shows that homestead rights must be measured not only by value but also by area. Since the word "value" is used in § 694, the word "amount" in § 694 necessarily refers to area and not to value. Our decisions support this view. In the case of Williams v. Overcast, 229 Ala. 119, 155 So. 543, 546, this court said:
In Hardy et al. v. Morgan, 238 Ala. 251, 189 So. 878, 879, this court said:
In the case of Brooks v. Johns, Adm'r, 119 Ala. 412 417, 24 So. 345, 347, this court said: ...
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