Ford v. Strong
| Decision Date | 04 April 1918 |
| Docket Number | 8 Div. 44 |
| Parties | FORD v. STRONG. |
| Court | Alabama Supreme Court |
Rehearing Denied May 9, 1918
Appeal from Circuit Court, Madison County; R.C. Brickell, Judge.
Bill by Frank Ellis Strong, guardian of Ben Ellis Ford, an infant against Eliza Ford. From a decree overruling a demurrer to the bill, respondent appeals, Affirmed in part, and reversed and remanded in part.
Betts & Betts, of Huntsville, for appellant.
Spragins & Speake, of Huntsville, for appellee.
Will B Ford died in Madison county in February, 1916, leaving surviving a widow, the appellant, Eliza Ford, a minor child of a former marriage, appellee's ward, Ben Ellis Ford, and two sons of the former marriage, who were, when the father died, over the age of 21 years. The decedent was seised and possessed at the time of his death of real and personal property. On April 10, 1916, the probate court of Madison county, in consequence of the petition of the widow, set apart and allotted to the widow (appellant) and to appellee's ward the described real estate as a homestead, vesting in the widow and the minor the absolute title thereto. It is averred in paragraph 5:
On the same date the probate court, in consequence of the widow's petition, set apart to the widow and the minor personal property as exempt to them under Code, §§ 4199 and 4200. The first section, 4199, provides:
"In favor of the widow and minor child or children, or either, of such decedent, there shall also be exempt from administration and the payment of debts all the wearing apparel of the decedent, and of the widow and minor children, all yarn and cloth on hand intended for their use and consumption, all books kept for use in the family, all family portraits and pictures, all grain, stores, and groceries on hand, necessary for the support of the family for twelve months after the decedent's death, and all bedding and household and kitchen furniture, necessary for the use and comfort of the family; to be selected by the widow, if there be one, or if there be no widow, or she fails to act, by the guardian of the minor child or children."
The other section, 4200, provides:
"In favor of such widow and minor child or children, or either, there shall also be exempt from administration and the payment of such debt, personal property belonging to such decedent at the time of his death, to the amount of one thousand dollars in value, to be selected and set apart for them; but if the estate is solvent, the value of such property so selected and set apart shall be, on final settlement and distribution of the estate, credited on the distributive shares of the widow and children receiving the benefit thereof, or on their respective legacies, if by will disposition is made of the entire estate; and any of such children, on leaving the family, shall be entitled to an equal share of the property so exempt, and then on hand."
Ben Ellis Ford does not reside with his stepmother, Eliza Ford. He resides with his grandfather, who is his regular guardian. So far as presently important the prayer of the bill filed by the regular guardian of Ben Ellis Ford against Eliza Ford, the widow, is this:
"Your orator further prays that said personal property be divided or partitioned between the said Eliza Ford and Ben Ellis Ford under the orders and decrees of this court, one-half to each, or, if the same cannot be equitably divided or partitioned that so much thereof as cannot be divided be sold for division under the orders of this court, and if the said Eliza Ford has sold or disposed of any of the same, she be required to account therefor, and that a decree be rendered against her in favor of your orator for the value of the said Ben Ellis Ford's interest therein, and that she be required to account to this court for the rents, income, and profits derived by her from said real estate since she has been in possession of the same since her husband's death, and your orator prays for such other, further and general relief as the facts and equities of the case entitle him to."
The respondent demurred to the bill as a whole as well as to the separate features thereof invoking relief with respect to the personal and real property. Every objection taken to the phase of the bill relating to the partition or division of the personal property set apart to the widow and to the minor is answered by the opinion and decision in Lanford v. Lee, 119 Ala. 248, 254, 255, 24 So. 578, 72 Am.St.Rep. 914, recently reaffirmed in Snead v. Scott, 182 Ala. 97, 62 So. 36. The deliverance of the Court of Appeals in Kelley v. Kelley, 9 Ala.App. 306, 63 So. 740, does not appear to have been made in the light of and in all respects consistent with the decision of this court in Lanford v. Lee, supra.
With respect to the other phases of the bill, that relating to the real property exempt as a homestead, it is to be conceded that the relief sought is not a sale of the homestead under the limited authority established in the closing provisions of Code, § 4196 (Clements v. Faulk, 181 Ala. 219, 61 So. 264; Hollis v. Watkins, 189 Ala. 292, 66 So. 29), but an accounting by the widow of the rents, income, and profits derived by her from the real estate so set apart as homestead exemption. Code, § 4196, in the presently important particulars, provides:
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