$ Div. 445-B, Tolar v. Clemons, 4 Div. 445-A

• Decision Date: 18 December 1947
• Docket Number: $ Div. 445-B.,4 Div. 445-A
• Citation: 250 Ala. 16,33 So.2d 21
• Parties: TOLAR et al. v. CLEMONS et al.
• Court: Alabama Supreme Court

33 So.2d 21

250 Ala. 16

TOLAR et al. v. CLEMONS et al.

4 Div. 445-A, $ Div. 445-B.

Supreme Court of Alabama

December 18, 1947

Oscar L. Tompkins, of Dothan, for appellants.

J N. Mullins, of Dothan, for appellees.

LAWSON Justice.

Walter E. Clemons died intestate on September 27, 1946. At the time of his death he was a resident of Houston County, Alabama.

After letters of administration were granted to the widow, Mrs Ruby L. Clemons, by the probate court of Houstion County, the administration of said estate was removed to the circuit court of Houston County, in equity.

Appraisers were appointed to set apart personal property exempt to the widow and minor children. §§ 664, 665, 671, Title 7, Code 1940. Such appraisers were also ordered to appraise the homestead of the deceased. § 672, Title 7, Code 1940.

The commissioners appointed made their report to the equity court of Houston County on November 9, 1946. As to the personal property of the decedent the appraisers reported that its value was less than $1000, placing a value thereon of $923.50. Such property the appraisers set apart and allotted as exempt to the widow and four minor children of decedent.

As regards the real property, the report of the appraisers recited:

'We further return herewith a full and accurate description of the lands occupied by the said Walter E. Clemons at the time of his death as a homestead, to-wit:

'NW 1/4 of SE 1/4 and NE 1/4 of SW 1/4 Section 13, Township 2 Range 28, Houston County, Alabama.

'Which said lands do not exceed in area 160 ares, but which do exceed in value more than $2,000.00; and we appraise the said land at $4,500.00.'

On November 11, 1946, the circuit court of Houston County, in equity, in accordance with the provisions of § 673, Title 7, Code 1940, appointed three commissioners who were ordered 'to set apart and allot as exempt the Homestead of said decedent, Walter E. Clemons, occupied by him at the time of his death or to which he was then entitled, not exceeding in area 160 acres and in value $2,000.00; with a full and accurate description of same, setting off and allotting by metes and bounds said Homestead, including the dwelling and appurtenances thereon to Ruth L. Clemons, Widow of Walter E Clemons, deceased, who is over the age of 21 years, and to the following named minor children of said Walter E. Clemons, deceased: * * *'

The commissioners on November 12, 1946, reported that they had set apart and allotted to the widow and minor children of deceased 'the premises occupied as a home by said deceased at the time of his death, and described as follows, to-wit: E 1/2 of NW 1/4 of SE 1/4, Section 13, Township 3, Range 28, Houston County, Alabama. We further appraise said premises at the value of Two Thousand Dollars.'

Thereafter adult heirs of the deceased filed exceptions and objections to the report of the appraisers setting apart and allotting the personal property of decedent to the widow and minor children. By separate instrument the same parties filed exceptions and objections to the report of the commissioners setting apart and allotting homestead exemption out of the lands of the decedent. § 676, Title 7, Code 1940.

On the day finally fixed for the hearing of such exceptions issues were made up under the direction of the court. These matters were heard orally before the court. It was agreed that the evidence there given be considered by the court in connection with both contests.

The trial court after weighing and considering all the testimony rendered a decree denying the contest as to personal exemptions set aside to the widow and minor children. It was therein decreed that the reasonable cash market value of the said personal property did not exceed $1000. The report of the appraisers as to personal exemptions was confirmed and the personal property was set aside to the widow and minor children.

As regards the contest of the report of the commissioners setting apart and allotting homestead exemption, the trial court held that such...