Coker v. Coker

• Decision Date: 26 October 1922
• Docket Number: 7 Div. 259.
• Parties: COKER v. COKER.
• Court: Alabama Supreme Court

94 So. 566

208 Ala. 354

COKER v. COKER.

7 Div. 259.

Supreme Court of Alabama

October 26, 1922

Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.

Petition of Mabel Gay Coker, by her guardian, for assignment of homestead and personal property. From a decree granting relief, W. H. Coker, executor, appeals. Affirmed.

See also, 94 So. 308.

Hugh Reed, of Center, for appellant.

Hood &amp Murphree, of Gadsden, for appellee.

SAYRE J.

Pending the settlement of the estate of John W. Coker, deceased, on the equity side of the circuit court of Cherokee county, the guardian of his widow filed a petition, praying that homestead be assigned to her, and that appellant, as executor of the last will and testament of deceased, be required out of the funds of the estate to make provision for her support and maintenance. A copy of the will, duly probated, was exhibited with the petition.

It is urged as an objection to the petition and the relief sought that there is no description of lands out of which homestead is to be assigned, save that they are situated in Cherokee county, where deceased resided at and before the time of his death. Testator died seized and possessed of a large estate including 2,000 acres of land in the county, all of which lands the executor has sold or contracted to sell. We presume in favor of the executor that such sale has been made, or is to be made, in pursuance of the power of sale conferred upon him, to be exercised when the appointed time should arrive for a division of testator's property among the beneficiaries named in the will. But that disposition, or attempted disposition, of the lands of testator, cannot bar the widow of her statutory right of exemption. Bell v Bell, 84 Ala. 64, 4 So. 189. The proceeding for homestead is prosecuted under section 4209 of the Code, providing that the probate court-in this case the circuit court to which the administration has been removed-shall appoint commissioners to allot homestead. The statute contains no requirement that the widow's application shall contain a description of the property, and we apprehend there can be no necessity for such description. The homestead is to be alloted out of the lands of deceased by commissioners of the court's appointment, who shall "appraise the homestead in the manner required of the appraisers; and, if practicable, they shall also allot and set off the homestead exemption in the manner provided" in section 4208. This, we think, involves the exercise by the commissioners of no objectionable judicial power-at least they determine no disputed questions of title.

Nor does it matter that petitioner guardian lived in a county different from that of the residence of his ward. His appointment was within the power of the appointing court. His residence in a different county was a consideration to be weighed in his appointment, but it cannot be made the subject of inquiry in this proceeding. Speight v. Knight, 11 Ala. 461; 21 Cyc. 37. In this connection see Cogburn v. McQueen, 46 Ala. 551; Ragland v. King. 37 Ala. 80.

Appellee's ward formerly resided with testator, her husband, in Cherokee county. Some years before testator's death he and his wife went on a visit to the state of Florida. While there Mrs. Coker became insane, and was committed to the asylum for the insane maintained by that state, where she has since remained a hopeless lunatic. These facts do not suffice to cause a forfeiture of her right of homestead in this state. Lewis v. Lewis, 201 Ala. 112, 77 So. 406; Chamboredon v. Fayet, 176 Ala. 216, 57 So. 845; Johns v. Cannon, 199 Ala. 138, 74 So. 42.

Testator provided by his will for the maintenance of his widow. The language of the will at one place, after imposing on his executors-appellant is the sole surviving executor-the...