Clements v. T.S. Faulk & Co.

• Decision Date: 13 February 1913
• Citation: 61 So. 264,181 Ala. 219
• Court: Alabama Supreme Court
• Parties: CLEMENTS et al. v. T.S. FAULK & CO. et al.

61 So. 264

181 Ala. 219

CLEMENTS et al. v. T.S. FAULK & CO. et al.

Supreme Court of Alabama

February 13, 1913

Appeal from Chancery Court, Geneva County, L.D. Gardner, Chancellor.

Action by Nettie Clements and others against T.S. Faulk & Co. and others. From the decree, complainants appeal. Reversed rendered, and remanded.

W.O Mulkey, of Geneva, for appellants.

DE GRAFFENRIED, J.

The complainants, who are the widow and minor children of J.N Clements, deceased, and to whom as such widow and minor children 160 acres of the lands of said deceased have been set apart as a homestead, filed this bill against the adult heirs of said Clements, or their grantees, and pray for a sale of said lands. The bill alleges that the lands cannot be equitably divided among the owners thereof, that all parties interested in the lands desire a sale thereof, that it is to the interest of the minors that the lands be sold, and prays that, when the sale is had and the purchase money is paid the value of the life estate of the widow and the right of occupancy of each minor of said land be ascertained, and that such sum shall be added to the interest of the minors in the remainder, and that the sum so ascertained shall be reinvested under the orders of the court for the benefit of such widow and minor children. The bill further prays that the remainder of the purchase money shall be paid over to the adult heirs.

1. The widow in the instant case, when this bill was filed, had a life estate in the lands, subject, of course, to the right of use and occupancy which section 4196 of the Code secures to the minor children. So long as the children remain minors, their rights of use and occupancy of the lands are equal to that of the widow, but by the express terms of the statute the widow (the estate of the husband being solvent) at the time of the filing of this bill had a life estate, and only a life estate, in the lands. She was not, however, at the time of the filing of the bill alone entitled to the use and enjoyment of the property. Her minor children during their minority were entitled to the use and enjoyment of the property along with her, and they are interested, along with the respondents, who are adults, as tenants in common in the remainder. The widow expresses in this bill her consent for the property to be sold, and relinquishes, for that purpose, her right of occupancy of the property during her life. So far as this bill is concerned, the effect of the bill is to relinquish to the parties to the bill the life estate of the widow in the lands, and this court has held that one who has a present use or enjoyment of land, and who, as a remainderman dependent upon the termination of such present use or enjoyment, is entitled to share in the proceeds of the sale of the lands, may file a bill to sell such lands (if they cannot be equitably partitioned) for the purposes of distribution among the tenants in common thereof, although some of the parties interested in the lands may be remaindermen only. Fies et al. v. Rosser, 162 Ala. 505, 50 So. 287, 136 Am.St.Rep. 57.

Of course, in a case like the present, the widow cannot alone file such a bill. She is, at best, a mere life tenant without interest in the remainder. Fies et al. v. Rosser, supra. In fact, when there are adult and minor children, as in this case, it cannot be affirmed that the death of the widow will terminate the particular estate created by said section 4196 of the Code. She may die during the minority of some of the children, and, in that event, the particular estate will not be determined until the youngest child arrives at lawful age. Code, § 4196. When, however, the widow and minor children, as in the present case, all join as complainants in the bill of complaint, it can be affirmed that the entire particular estate created by section 4196 of the Code is represented, and we can see no reason why, when such is the case, a court of equity, if convinced that it is to the interest of the minors for such a sale to be had, has not the power to order a sale of the lands for distribution (if the lands cannot be equitably divided), and out of the proceeds of the sale reserve that part which in equity belongs to the widow and minors, reinvest it for their benefit subject to the limitations imposed by section 4196 of the Code, and pay over to the adults the balance. Fies et al. v. Rosser, supra.

We emphasize the above...