Chamboredon v. Fayet

• Decision Date: 19 January 1912
• Parties: CHAMBOREDON v. FAYET ET AL.
• Court: Alabama Supreme Court

57 So. 845

176 Ala. 211

CHAMBOREDON v. FAYET ET AL.

Supreme Court of Alabama

January 19, 1912

Rehearing Denied Feb. 17, 1912.

Appeal from Chancery Court, Jefferson County; A. H. Benners Chancellor.

Bill by Adele Chamboredon, as guardian of Clio May Fayet, against Toney Fayet and others. From a decree dismissing the bill complainant appeals. Reversed and remanded.

J. B Aird and Arthur L. Brown, for appellant.

Henry Upson Sims, for appellees.

SAYRE J.

This bill is filed by Adele Chamboredon, as duly appointed guardian of her infant daughter, Clio May Fayet, both residents of this state, against the three executors of the will of August Fayet, deceased, and his eight adult children, two of whom are also executors and made parties defendant as such. The third executor, also a party, is a son-in-law of the decedent. The bill avers that the executors are proceeding to administer the estate in the probate court in utter disregard of the claims and rights of complainant's ward, and are dividing the property among themselves and the other defendants, but that no steps have been taken for a final settlement in the probate court. The purpose of the bill is to have a homestead, $1,000 in money, and certain articles, to wit, a diamond ring, diamond stud, gold watch and chain, set ring, cuff buttons, iron safe, and electric battery, alleged to have constituted a part of decedent's wearing apparel and household furniture, declared exempt to complainant's ward and set apart to her use and benefit, and, in order that the relief sought may be made more effective, to have the administration removed into the court of chancery. By pleading and uncontradicted evidence it appears that decedent was thrice married. His eight adult children were the offspring of his first marriage. His second wife died childless. Complainant had been decedent's third wife, and her ward was the child of that marriage. Decedent had procured a decree of divorce from complainant on the ground of abandonment, and by that decree the custody, care, and control of the child was awarded to and imposed upon complainant in this cause, who thereafter resumed her maiden name, and is now known as Mrs. Adele Chamboredon. The wife was awarded alimony. At the same time, and, it may be inferred, in pursuance of some provision in the decree of the court granting alimony, though that decree is not before us, decedent conveyed to complainant, as trustee for her infant daughter, real property valued at $1,667. Clio May never lived with her father, having been born after the separation of her parents, but before the divorce. Decedent left a large estate, consisting of real and personal property. By his will he divided his entire estate among the children of his first wife, referred to his former provision for his divorced wife, and left to his infant daughter $1.

In his decree dismissing the bill the chancellor assigns no reason for his conclusion that the complainant was not entitled to relief. Appellees seek to justify the result on various grounds, which will be stated and considered.

It seems to be contended, on the authority of Ex parte Pearson, 76 Ala. 521, that complainant's ward is not entitled to exemptions of any sort, because she was never a member of decedent's family. In that case it was held that the exemptions of personal property to the widow and minor children of a decedent, under the Code of 1876, like the exemption of a homestead, contemplated the existence of a family relation in this state, so that where a decedent died in this state, after a residence of several years, while his wife and children continued to reside at his former residence in another state, and never came to this state until after his death, they were not entitled to statutory exemptions of personalty. This was put upon the language of section 2824 of the Code of 1876, providing that "any person dying, leaving a widow, or child, or children, under the age of twenty-one years, members of his family, in addition to the exemption heretofore made under this chapter [[homestead exemption], there shall be exempt all the wearing apparel of the deceased," etc. But the law was significantly changed in the codification of 1886, when the section was made to read: "In favor of the widow and minor child or children, or either, of such decedent, there shall be exempt from administration and the payment of debts * * * all the wearing apparel of the decedent," etc. Code 1886, § 2545. Such has been the language of the provision since that time. Code 1907, § 4199. And in 1903 (Acts 1903, p. 150) section 2070 of the Code of 1896, which provided for exemptions in lieu of homestead, was amended so as to read as section 4197 of the Code of 1907 now reads; the effect being that, if decedent, at the time of his death, has no homestead exempt to him, or has no other real estate out of which a homestead can be carved, "the widow and minor children, or either of them, may by petition in the probate court, or by bill in equity, have the homestead or any other real estate owned by the decedent at the time of his death sold, and two thousand dollars of the purchase money therefor applied by the court in the purchase of a homestead for the benefit of such widow and minor children, or either of them: Provided such petition or bill in equity is filed before a final distribution of the assets of decedent's estate has been made. * * * And in no case, and under no circumstances, shall the widow and minor children, or either of them, be deprived of homestead or two thousand dollars in lieu thereof, if they or either of them apply therefor in manner as herein provided, before final distribution of the decedent's estate." [ 2] The decree of divorce barred the wife of her dower, and of any distributive share in the personal estate of her husband (Code, § 3816); but no rights of the child were concluded by that decree, nor do the statutes of the state express a policy which would cut off her homestead right. [ 3] But for the decree of divorce the wife would have been entitled to homestead, notwithstanding she had lived apart from her husband for years prior to his death. Coker v. Coker, 160 Ala. 269, 49 So. 684, 135 Am. St. Rep. 99; Nolen v. Doss, 133 Ala. 259, 31 So. 969. The language of the statute providing for homestead and other exemptions for minor children covers the case of this child, and it is not within the province of the court to ingraft upon it any exceptions. Walker v. Walker, 181 Ill. 260, 54 N.E. 956; Hall v. Fields, 81 Tex. 553, 17 S.W. 82.

August Fayet had resided in Jefferson county for many years before his death, and at that time had a homestead there. His death occurred in April, 1908, and his will was offered for probate in the same month, but, for reasons to be stated further on was not admitted to probate until June, 1909. The will contained a direction that the executors, for the purpose of making an equal distribution of testator's real estate among his eight adult children, should, as soon after his death as convenient, provide for a division of the realty among them. In the latter part of June, 1910, the executors proceeded to carry out this provision of the will; the said children adopting their acts in the premises by exchanging deeds among themselves. On this division the homestead was allotted to one of the sons. Complainant had never lived in this home place, and prior to the filing of this bill, which was in October, 1910, no demand or claim of homestead right had been made on behalf of her infant daughter. The evidence shows that the place, after being reduced to its lowest practicable area, is worth considerably more than $2,000. Where the homestead does not exceed $2,000 in value, or 160 acres in area, it vests in the exemptioner immediately upon the death of the parent or husband with or without administration. This because selection is unnecessary. But if the homestead is worth more than $2,000, there must be an administration and selection to vest title. The testator cannot by his will cut off the right of his widow and minor children, or either of them, to claim homestead or other exemptions under the statute. Bell v. Bell, 84 Ala. 64, 4 So. 189; Hubbard v. Russell, 73 Ala. 578. [ 5] But homestead and other exemptions are...