Cade v. Graffo

• Decision Date: 16 March 1933
• Docket Number: 6 Div. 276.
• Citation: 148 So. 591,227 Ala. 11
• Parties: CADE et al. v. GRAFFO et al.
• Court: Alabama Supreme Court

148 So. 591

227 Ala. 11

CADE et al. v. GRAFFO et al.

6 Div. 276.

Supreme Court of Alabama

March 16, 1933

Rehearing Denied May 25, 1933.

Appeal from Circuit Court, Jefferson County; Wm. M. Walker, Judge.

Bill by Henry Cade against Pat Cade, T. J. Graffo, and others to have real estate set aside as exempt to complainant. From a decree denying relief, complainant appeals.

Reversed rendered, and remanded.

Erle Pettus, of Birmingham, for appellant.

Edgar Allen and Thos. J. Judge, both of Birmingham, for appellees.

ANDERSON Chief Justice.

This record involves two cases which were, by agreement consolidated in the court below, and there was one general decree from which this appeal was taken.

The main issue is the ownership or title to the real estate involved, that is, whether it belongs to Henry Cade or T. J Graffo. Henry Cade claims by descent from his mother, Mary Tibbs Cade, as her only heir and who owned the property at the time of her death in 1912. Graffo claims title through purchase from Pat Cade, the father of Henry, and who got the same under a will made in his favor by the said Mary Tibbs Cade. Henry Cade contends that, while said will was duly executed and probated after the death of his mother, within the time allowed him after becoming of age, he filed a bill to annul said will and was granted a decree; that, regardless of the will, the property involved was the homestead exemption less than $2,000 in value, and, being a minor and the only heir of his mother, he took an absolute title to the property which could not be defeated by the will to his father. Graffo contends that the cancellation of the will was the result of a fraudulent conspiracy on the court by Henry and Pat Cade for the purpose of defeating his title under the deed from Pat Cade; that the property was not less than the exemption, and, as the homestead was not set apart, the title did not vest absolutely in the said Henry Cade. If the contention of Henry Cade is sound, that the property was less than the exemption and was the homestead of his mother, he being her only heir and a minor and took the absolute title this would be the end of this case, regardless of the validity of the will to his father or other questions presented.

Section 7926 of the Code of 1923, same as the Code of 1907 (section 4204), provides: "When any woman, a resident of this state, dies, leaving surviving her a minor child or children, there shall be exempt from administration and the payment of debts, in favor of such minor child or children, such property of her estate, real and personal, as is exempt by law to the widow and minor child or children, or either, from the estate of a deceased husband or father, and such exempt property shall be set apart and appraised, and held by such minor child or children, in all respects as provided in this chapter with respect to exemptions from the estate of a deceased father, so far as such provisions are applicable."

When the land is the homestead of the mother, and all of the land owned by her at the time of her death, and its value does not exceed $2,000, no proceeding is necessary to have it set apart and appraised, and the title to such homestead vests absolutely in her minor child or children. Quinn v. Campbell, Adm'r, 126 Ala. 280, 28 So. 676; Hall v. Hall, 171 Ala. 618, 55 So. 146; Hodges v. Hodges, 172 Ala. 11, 54 So. 618. True, as pointed out in the case of Miles v. Lee, 180 Ala. 439, 61 So. 915, this rule has been changed and modified by section 4198 of the Code of 1907, section 7920 of the Code of 1923, but only to the extent that, as to the heirs, the title does not vest absolutely until the homestead is set apart, and it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than $2,000.

It is true that the owner of the property left a husband as well as her only child, Henry Cade, and, under section 7376 of the Code 1923, the husband shares in the estate of his wife. This statute is a substitute for the common-law curtesy, Lake v. Russell, 180 Ala. 199, 60 So. 850, but we do not think it makes the husband an heir of the wife in the technical sense and as mentioned in section 7920 of the Code. The authorities are not in harmony as to whether a husband and wife come within the term heir, but the great weight of authority is that, under the common law, they are not. 29 C.J. p. 301, § 16. Moreover, there is an agreement in the record that Henry Cade was the "only heir" of his deceased mother.

It is the well-settled law of this state that homestead rights may not be affected by the testamentary disposition of the owner. Williams v. Massie, 212 Ala. 389, 102 So. 611; Edmonds v. Cogsdill, 182 Ala. 309, 62 So. 691; Richter v. Richter, 180 Ala. 218, 60 So. 880; Bell v. Bell, 84 Ala. 64, 4 So. 189; Coker v. Coker, 208 Ala. 354, 94 So. 566.

This brings us to the question of whether or not the lots involved were the homestead of Mary Tibbs Cade at the time of her death and were worth less than $2,000.

It appears that the real estate in question consists of three town or city lots which adjoined. The home was built on one of the lots which was first purchased, then the other two were purchased, and all three for a while were under one fence. Subsequently, the then owner erected houses on the other two lots and rented them, the evidence being in dispute as to whether each lot was entirely separated from the others, but there is testimony that there was an orchard and garden in the rear of the rented houses from which Mary Tibbs Cade gathered fruits and vegetables, and she was seen on various occasions cultivating and looking after the garden. This would indicate that, though the other two houses were rented, a portion of the lots upon which they were located was used by Mary Tibbs Cade in connection with her home. This case is quite similar to Marx v. Threet, 131 Ala 340, 30 So. 831,...