Coker v. Coker
Decision Date | 13 May 1909 |
Citation | 160 Ala. 269,49 So. 684 |
Parties | COKER ET AL. v. COKER. |
Court | Alabama Supreme Court |
Appeal from Probate Court, St. Clair County; W. S. Forman, Judge.
Proceedings between G. W. Coker and others and Margaret Coker for allotting land to the widow of a decedent as exempt to her. From a decree confirming the report of commissioners allotting land to the widow, G. W. Coker and others appeal. Affirmed.
J. A. Embry and John H. Miller, for appellants.
J. P. Montgomery, for appellee.
This is an appeal from a decree of the probate court of St. Clair county, confirming the report of commissioners, allotting 40 acres of land to the widow of a deceased owner as exempt to her under section 4197 of the Code of 1907. Assuming that the record properly presents the question for review, the sole question for determination is whether a widow, who had lived apart from the husband for two years or more prior to his death, but between whom and the husband there had been no dissolution of the marital relations, is entitled to a homestead exemption.
We regard the question as being ruled in the affirmative by the decision in the case of Nolen v. Doss, 133 Ala. 259, 31 So. 969. It was there urged, upon the grounds made the basis of the contention in this case, that the widow was not entitled to share in the distribution of the husband's personal estate. The court, speaking through the present Chief Justice, said: The principle is the same in respect to the rights of the widow to have realty of the husband exempt to her. The statute does not make separation terminate the widow's right, and it would be judicial legislation if the courts should do so.
There is no error in the decree, and it is accordingly affirmed.
Affirmed.
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... ... therewith the expressions of this court in Nolen v ... Doss, 133 Ala. 259, 31 So. 969, Coker v. Coker, ... 160 Ala. 269, 49 So. 684, 135 Am.St.Rep. 99, and ... Chamboredon v. Fayet, 176 Ala. 211, 216, 217, 57 So ... 845, where, in the ... ...
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...counsel has no application." This view is supported by respectable authority in the same and other jurisdictions. Coker v. Coker, 160 Ala. 269, 49 So. 684, 135 Am. St.Rep. 99; Johns v. Cannon, 199 Ala. 138, 74 So. 42; Curry v. Barnes, 200 Ala. 256, 76 So. 22; Meyers' Adm'r v. Meyers, 244 Ky......
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...fact that the widow was not living with the decedent at his death does not affect her life interest in the property. In Coker v. Coker, 160 Ala. 269, 49 So. 684 (1909) the sole question for determination was whether the widow who had lived apart from the husband for two or more years prior ......