Curry v. Barnes

• Citation: 200 Ala. 256,76 So. 22
• Decision Date: 05 April 1917
• Docket Number: 6 Div. 507
• Parties: CURRY v. BARNES.
• Court: Supreme Court of Alabama

76 So. 22

200 Ala. 256

CURRY v. BARNES.

6 Div. 507

Supreme Court of Alabama

April 5, 1917

Rehearing Denied June 30, 1917

Appeal from Probate Court, Jefferson County; J.P. Stiles, Judge.

Application by Mattie Curry for homestead and personal exemptions. Opposed by Cordelia Barnes. From a decree sustaining exceptions to the exemptions, the applicant appeals. Reversed and remanded.

Jere C King, of Birmingham, for appellant.

Haley &amp Haley, of Birmingham, for appellee.

THOMAS J.

The appeal is taken from the decree of the probate court sustaining exceptions to the setting aside of a homestead and personal exemptions to the widow of decedent. Thus there is presented for decision the question of a widow's right to exemptions, as provided by chapter 86, arts. 3 and 4, § 4196 et seq., of the Code, where she had not lived with her husband for many years prior to his death, and was not a citizen of this state at that time.

The evidence in this case shows that the wife left the husband without fault on her part, more then ten years before his death, and did not return to this state to live until after his death, and before she made her application to have the statutory exemptions set apart to her as such widow. The exceptions to the allowance of the widow's exemptions were sustained by the judge of probate under the construction of the statutes found in Ex parte Pearson, 76 Ala. 521. This is the leading authority in this state holding that a nonresident widow is not entitled to such exemptions, where the husband died a resident of this state, and owning and occupying a homestead in Alabama.

The statute construed in Ex parte Pearson, supra, was the act of February 9, 1877, which provided "that when the owner and occupant of the homestead dies, leaving a family consisting of a widow or child, or children, or both, then the homestead of the family" shall be exempt to them on the terms indicated. Gen.Acts 1876-77, p. 32. This provision of the act found expression in the Code of 1876 as sections 2821 and 2824, according to which, "when the owner and occupant of the homestead dies, leaving a family consisting of a widow or child, or children, or both, then the homestead of the family *** shall be exempt," etc.; and "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," etc. (under this chapter), "there shall be exempt," etc. The Pearson Case was adverted to in Griffin et al. v Griffin, 185 Ala. 198, "In the absence of any evidence to the contrary, it is a prima facie presumption of law that the residence of the husband is the residence also of the wife, and the burden of showing the contrary is, as a matter of pleading as well as of proof, cast upon the party who would deny such residence."

The Griffin Case, however, did not take notice of the subsequent changes made in such exemption statutes, and found in the Code of 1907. It did distinctly reserve decision of the question of a nonresident widow's right to homestead and other exemptions out of the properties of her resident husband with whom she did not live at the time of his death, but from whom she had not been divorced.

Significant changes in these statutes are found in the Code of 1886, where their provisions appear as section 2543, with the omission of the words "leaving a family" (occurring in section 2821 of the Code of 1876); and as section 2545, omitting the words "members of his family," embraced in section 2824 of the Code of 1876. Such has been the language of the statutes in the Code of 1896 (sections 2069, 2072), and in the Code of 1907 (sections 4196, 4199).

In providing for exemptions in lieu of the homestead, the Code of 1907 (section 4197) makes a radical departure from the provisions of the Code of 1896 embodied in section 2070; the new form of the statute being to the effect that:

"In no case, and under no circumstances, shall the widow and minor children, or either of them, be deprived of a homestead or two thousand dollars in lieu thereof, if they or either of them apply therefor *** as herein provided before final distribution of decedent's estate." Gen.Acts 1903, p. 150.

Such is the history or growth of the exemption right secured to the widow and minor child or children of the resident decedent of this state.

Appellant contends that under the provisions of these statutes no limitations are attached to the right of the widow or the minor children to claim homestead and exemptions on timely application, as provided by the statute. In Nolen v. Doss, 133 Ala. 259, 31 So. 969, this court declared that on final settlement of the administration of a decedent's estate, the widow is entitled to take the personal property of the estate (there being no children of decedent), and this, notwithstanding she lived apart from her husband at the time of his death, and co-habited with another whom she held out to be her husband; that so long as the marriage rights in law continued, just so long the right of the wife, and of the widow, existed under the statute.

Section 1462 of the Code of 1896, thus construed in Nolen's Case is brought without change into the Code of 1907 as section...