Craig v. Root

• Decision Date: 07 March 1946
• Docket Number: 3 Div. 435.
• Citation: 25 So.2d 147,247 Ala. 479
• Parties: CRAIG et al. v. ROOT.
• Court: Alabama Supreme Court

25 So.2d 147

247 Ala. 479

CRAIG et al. v. ROOT.

3 Div. 435.

Supreme Court of Alabama

March 7, 1946

L A. Sanderson and Jack L. Capell, guardian ad litem, both of Montgomery, for appellants.

Hill Hill, Whiting & Rives, of Montgomery, for appellee.

LAWSON Justice.

This case is before us on appeal from a decree of the probate court of Montgomery County setting apart a homestead and investing exclusive title therein to appellee as the widow of Isaiah Root, deceased, pursuant to § 694, Title 7, Code 1940 § 4224, Code 1907.

One of the appellants, Virginia Craig, is a daughter of Isaiah Root, and the others are his grandchildren, children of the deceased children of the said Isaiah Root. There are several assignments of error but in appellants' brief it is stated that only one question is urged on this appeal. We quote from appellants' brief as follows: 'There are four assignments of error, but we take it that each assignment of error raises the same proposition, that is to say, that the probate court of Montgomery County, Alabama, was without authority to set aside the real property or that is the property of Isaiah Root, deceased, to his widow, Millie Root, because she failed to file her application to have same set aside for more than thirty years after her husband's death.'

The position which appellants take here is in accord with the position which they took in the court below, as reflected by an agreed statement of facts, which is as follows:

'It is agreed between Millie Root, applicant to have homestead set aside, and Virginia Craig and others, filing objection to the report of the commissioners setting aside the homestead to the said Millie Root, that the property as described in the petition of said Millie Root was owned by the said Isaiah Root, husband of the said Millie Root; that they were lawfully married and resided on said property, claiming the same as a homestead at the time the said Isaiah Root died July 3, 1914; that the said property was, at the time of the death of the said Isaiah Root, and is now, of less than 160 acres in area and $2,000 in value; that it is now occupied by the said Millie Root, who has occupied the same as a home continuously from the date of the death of the said Isaiah Root in the year 1914; that no administration has ever been had upon the estate of the said Isaiah Root; that more than twenty years elapsed between the death of the said Isaiah Root and the application of his widow, the said Millie Root, to have said property set aside to her as a homestead; that the property sought to be set aside as a homestead was all the property, real or personal, possessed by the said Isaiah Root at the time of his death; that Virginia Craig, Mary Powell, Minnie Joseph, and Beatrice McGhee, who through their attorney, L. A. Sanderson, filed objection to the report of the commissioners setting aside the real estate of Isaiah Root to his widow, Millie Root, are the next of kin of the said Isaiah Root.

'It is agreed between the parties that the only question at issue is whether or not, under the facts of this particular case, the said Millie Root, widow of Isaiah Root, is lawfully entitled to have the homestead set aside to her on her application filed more than twenty years after the death of the said Isaiah Root, the contention of the next of kin of the said Isaiah Root being that failing to file her claim for exemption within twenty years, her right to said exemption is barred by laches or by prescription of twenty years.'

The decree of the probate court confirming and approving the report of the commissioners and vesting the title to the property here involved absolutely in appellee, contains the following language:

'By agreement of all parties to this proceeding in writing filed herein, it is stipulated and agreed that the only question at issue is whether or not the widow is lawfully entitled to have the homestead set aside to her on her application filed more than twenty years after the death of her husband.

'It is the opinion of the court that under the admitted facts in this case the failure of the widow to file her application for the exemption until more than twenty years after the death of her husband has not barred her of her right to do so.'

There is no statute of limitation which prescribes the time within which a widow must present her petition to have homestead set aside where there has been no administration of decedent's estate, except that under the present statute (§ 694, Title 7, Code 1940) it cannot be filed within sixty days of the decedent's death. Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113; Davis et al v. Bates, 239 Ala. 214, 194 So. 647.

Isaiah Root having died in 1914, the rights of the parties are judged by the statutes in force as of that date. Code 1907, §§ 4196, 4198, Code 1940, Title 7, §§ 661, 663; Haynes v. Haynes, 236 Ala. 331, 181 So. 757; Williams v. Overcast et al., 229 Ala. 119, 155 So. 543. The property here involved was occupied as a homestead by decedent at the time of his death and was all of the real estate which he owned in this state at that time; it did not exceed in area or value the exemption allowed by law. Therefore, the appellee took a life estate without the necessity of any act on her part. The law intervenes and makes an allotment in such cases. Cox et al. v. McLemore, et al., 236 Ala. 559, 183 So. 860; Franklin v. Scott et al., 227 Ala. 101, 148 So. 833. Likewise, the fee vested in appellee (assuming there were no minor children) as against creditors. § 4198, Code 1907, § 663, Title 7, Code 1940; Montgomery v. Hammond et al., 228 Ala. 449, 153 So. 654. Appellee's delay in filing her petition has not worked to the injury of the other heirs of decedent. As to children who had reached their majority at the time of their father's death, their right to succeed to his interest in the property could have been cut off at any time by proceedings to set it aside to the widow (and minor children, if any). Appellee was under no duty to file such proceedings during the minority of the children of decedent, for such minors (if any) could have proceeded by next friend. § 4224, Code 1907, § 694, Title 7, Code 1940. It is true that prior to § 702, Title 7, Code 1940, on arrival of a minor at full age, no proceeding to set apart the homestead and to vest a fee in him having been instituted, his homestead right ends and he takes his position as an heir at law of the estate. In Buchannon v. Buchannon, supra [220 Ala. 72, 124 So. 115], Mr. Justice Bouldin, in writing to this question for the court, said: 'We find nothing in the statute nor in the policy behind exemption laws, which would limit the widow's right to interpose her claim to the period during which the status as to minority of children existing at the time of decedent's death still continues.' The quantum of the estate which appellee is to take was fixed by the death of her husband. Her interest in the fee has not been enlarged by the death or arrival of age of minor children (if any) who were living at the time of decedent's death. Buchannon v. Buchannon, supra. In view of the fact that there is nothing in this case to show that injury has resulted to the other heirs of decedent by appellee's delay in filing her petition, the doctrine of laches does not operate to bar her from having the property set aside to her at this time. Where the question of laches is presented, the facts and circumstances of each case govern the court in the exercise of the discretion thereby invoked for the determination of the inquiry. Waddail v. Vassar et al., 196 Ala. 184, 72 So. 14; Shepherd v. Kendrick et al., 236 Ala. 289, 181 So. 782. It has been often decided that mere delay that has resulted in no disadvantage to another or that has not operated to bring about changes of conditions and circumstances in consequence of which, 'there can be no longer a safe determination of the controversy,' will not serve to bar a complainant's right or remedy. Snodgrass v. Snodgrass, 185 Ala. 155, 64 So. 594; Waddail v. Vassar, supra. Nor can laches be imputed to one in possession. Woodlawn Realty & Development Co. v. Hawkins et al., 186 Ala. 234, 65 So. 183.

Appellants' main insistance is that appellee is conclusively barred from having the property set aside to her by the doctrine of prescription in that more than twenty years elapsed between the date of the death of her husband and the filing of the petition.

But we do not think that under the facts of this particular case appellee is barred by the doctrine of prescription for the reason that she has been in the open, continuous, notorious and exclusive possession of the property here involved since her husband's death. This right of possession is expressly conferred on her by the law. She has not undertaken to convey the property to anyone, nor has she done anything to change the status of the property since her husband's death or to alter the situation then prevailing. No act of omission or commission, by her, has adversely affected the rights of others. Harold Brothers & Scott v. Weaver, 72 Ala. 373; Branford v. Shirley, 238 Ala. 632, 193 So. 165, 167.

In Harold Brothers & Scott v. Weaver, supra, appellee brought suit for the reformation of a deed. Appellant demurred on the ground, among others, that the 'bill shows that more than twenty years have elapsed since the mistake that is sought to be corrected, and does not show when it was first discovered by complainant, nor that he commenced suit as soon as he could after the discovery of the mistake.' The demurrer was overruled and respondent appealed. Mr. Chief Justice Brickell, in writing for the court, said:

'And it may be admitted, that the long delay in applying for relief is not accounted...