Buchannon v. Buchannon

Decision Date10 October 1929
Docket Number8 Div. 72.
Citation124 So. 113,220 Ala. 72
PartiesBUCHANNON ET AL. v. BUCHANNON.
CourtAlabama Supreme Court

Appeal from Probate Court, Marshall County; Oscar Horton, Judge.

Proceeding by Frances Elizabeth Buchannon to set apart homestead exemption to the widow and minor children of Dave Buchannon deceased, contested by Oliver Street Buchannon and others. From a decree for petitioner, contestants appeal. Reversed and remanded.

Wm. C Rayburn, of Guntersville, for appellants.

John A Lusk, of Guntersville, for appellee.

BOULDIN J.

The appeal is from the decree of the probate court setting apart homestead exemption to a widow and minor children under Code § 7948.

A motion is made to strike the bill of exceptions on the ground that it was not presented within the time required by law.

While it purports to be so presented and signed, the affidavit of the judge signing the same shows it was not presented nor signed within time, but was dated back.

Such fact may be shown by affidavit filed in this court in support of the motion. Johnson v. Frix, 177 Ala. 251, 58 So. 427; Buck Creek Lumber Co. v. Nelson, 188 Ala. 243, 66 So. 476.

The motion to strike must be granted.

Looking to the record proper and assignments of error based thereon, the petition shows decedent occupied the homestead at the time of his death; that it was less in area and value than the exemptions allowed by law to his widow and minor children; that he owned no other real estate; that more than 60 days had elapsed since his death and no administration granted on his estate; that he left surviving petitioner, his widow, and four minor children, naming them, as well as other adult children and descendants of children.

Thus far the petition clearly sets forth the jurisdictional facts. This does not seem to be questioned. But the petition further shows the proceeding was instituted more than 18 years after the death of the husband and father; that meantime all the minor children have become a full age.

The final decree, on exceptions to report of the commissioners, finds all these averments to be true; and thereupon confirmed the report setting apart the homestead to the widow and four children who were minors at their father's death.

If free from error, such decree has the effect of vesting an estate in fee in the widow and four children named. Code, §§ 7920, 7951.

The decree is assailed on the ground that a homestead cannot be set apart to minor children after they have become of age.

By the present statute, a minor at the death of the decedent may take in fee, although he has arrived at age before the proceedings to set apart the homestead. Code, § 7956.

But in this case decedent died in 1910. Widow's and minors' homestead exemptions are governed by the law in force at the date of decedent's death.

The Code of 1907 must govern. By that Code absolute title did not vest as against heirs until the homestead was duly set apart and certain named facts judicially ascertained. Code, § 7920 (4198). There was no provision, as under section 7956 of the present Code, to the effect that such proceeding could be had after the minor arrived at full age, and vest absolute title as of the death of the ancestor.

These statutes enlarging the homestead from a right of possession and enjoyment during the life of the widow and minority of the children, or either, into a fee upon the judicial ascertainment of certain facts touching the condition of the estate, had a prototype in our statute so enlarging their estate upon judicial ascertainment of the insolvency of the estate of decedent. Code, § 7918.

Under this statute it has long been declared that judicial ascertainment of insolvency must be had before the minor arrives at full age; that the enlarged estate must come into being while the possessory right of homestead exemption exists; that a new estate in fee cannot arise after the homestead right during minority has terminated. Baker v. Keith, 72 Ala. 121.

We note that under section 7948, the proceeding on behalf of minors is by the widow, or, if no widow or she fails to act, then some suitable person appointed by the judge of probate as next friend of the minor child or children. No occasion for a next friend exists after the minor has come of full age. The omission of any provision permitting the minor to act for himself after arriving at age, or extending the power of the widow or next friend to such case, is persuasive that no such proceeding is contemplated.

Our conclusion is that prior to section 7956 of Code of 1923, on arrival of a minor at full age, no proceeding to set apart the homestead and to vest a fee in him having been instituted, his homestead right was ended, and he took his position as an heir at law of the estate. We may note that this rule has no application where the only heirs of decedent are his surviving minor children. In such case they take a fee by inheritance, and no proceeding to set apart the...

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18 cases
  • Williams v. Overcast, 8 Div. 549.
    • United States
    • Supreme Court of Alabama
    • April 26, 1934
    ...... to Mrs. Overcast and her son. Section 7956, Code. . . In the. decision of Buchannon v. Buchannon, 220 Ala. 73, 74,. 75, 124 So. 113, 114 (Code of 1923, §§ 7934, 7948), the. jurisdictional facts are recited to be as follows:. . ......
  • Davis v. Reid, 3 Div. 712
    • United States
    • Supreme Court of Alabama
    • June 30, 1956
    ...when seeking to set aside the homestead under the statute in question. See Miller v. Thompson, 209 Ala. 469, 96 So. 481; Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113; Williams v. Overcast, 229 Ala. 119, 155 So. 543; Wright v. Fannin, 229 Ala. 278, 156 So. 849; Davis v. Bates, 239 Ala. 2......
  • Bishop v. Johnson
    • United States
    • Supreme Court of Alabama
    • March 26, 1942
    ...(or next of kin) of the estate, in line with Williams v. Overcast, 229 Ala. 119, 127, 155 So. 543, it is further declared in Buchannon et al. v. Buchannon, supra, "Our conclusion is that prior to section 7956 of Code of 1923, on arrival of a minor at full age, no proceeding to set apart the......
  • Wright v. Fannin, 7 Div. 232.
    • United States
    • Supreme Court of Alabama
    • June 21, 1934
    ...proceeding in rem. Bedwell et al. v. Dean et al., 222 Ala. 276, 132 So. 20; Jones v. Hubbard, 208 Ala. 269, 94 So. 167; Buchannon v. Buchannon, 220 Ala. 73, 124 So. 113; Nichols et al. v. Dill, 222 Ala. 455, 132 So. It is to be governed by the law of force at the time of the husband's death......
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