Franklin v. Scott

• Decision Date: 01 June 1933
• Docket Number: 3 Div. 37.
• Parties: FRANKLIN v. SCOTT et al.
• Court: Alabama Supreme Court

148 So. 833

227 Ala. 101

FRANKLIN v. SCOTT et al.

3 Div. 37.

Supreme Court of Alabama

June 1, 1933

Rehearing Denied June 22, 1933.

Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.

Action in ejectment by Dollie Franklin against Rhoda Scott and the City of Montgomery, transferred to equity docket, where respondent City of Montgomery filed a cross-bill. From the decree, complainant appeals.

Modified and affirmed.

Warren S. Reese, Jr., of Montgomery, for appellant.

Ball &amp Ball and John L. Goodwyn, all of Montgomery, for appellees.

BOULDIN Justice.

This appeal presents, first, the right of Dollie Franklin, sole heir of Sol Scott, deceased, to recover an undivided one-half interest in a lot fronting north on Washington avenue 100 feet, and running back south, along the east side of Shepard street, 200 feet in Douglasville, a suburb of Montgomery.

The trial court gave judgment for a one-half interest in the east 50 feet of such lot. The appeal is to test the right to recover the west 50 feet.

Without question the property was owned by Sol Scott and Rhoda Scott his wife, as tenants in common, and occupied by them as their homstead until Sol's death in 1923. Some years later Rhoda, the widow, conveyed the property to the city of Montgomery, the city acquiring the property for the use of Maxwell Field.

Rhoda at the time, claimed and under took to convey to the city the full fee-simple title; but admittedly it now appears Sol left Dollie Franklin, of full age, as an heir at law, succeeding to his one-half interest, subject to the homestead right of Rhoda, as widow.

No homestead was ever allotted or set apart to Rhoda prior to her sale and conveyance to the city.

The answer sets up that the residence was on this west 50 feet, that it was distinctly defined and separated from the east portion of the lot by a fence, etc., and did not exceed $2,000 in value at the time of Sol's death.

Appellant contends that the alienation of the homestead before allotment worked an abandonment of the homestead right in favor of the heir.

It is the long settled law of Alabama that, under present statute, where the homestead occupied by the decedent at his death is a distinct and separate parcel from his other lands, and is less in area and value than the widow's homestead allowance, no allotment is required. The law intervenes and makes the allotment. The widow takes a life estate which she may convey to another as any other life estate. Tartt v. Negus, 127 Ala. 301, 28 So. 713; Kyser v. McGlinn, 207 Ala. 82, 92 So. 13; Johns v. Cannon, 199 Ala. 138, 74 So. 42; Jones v. Stokes, 179 Ala. 579, 60 So. 280; Bodeker v. Tutwiler, 211 Ala. 537, 100 So. 776.

Appellant complains that section 7952 expressly requires an allotment under the statute in order to preserve it from abandonment and forfeiture by removal. This same statute was the one construed in Tartt v. Negus, supra, in the light of similar principles theretofore declared in cases cited in that opinion.

The statute has been re-enacted with this known construction. Indeed, section 7920, a later statute, was passed in recognition of the doctrine of Tartt v. Negus, modifying such rule only in that a judicial ascertainment of essential facts is now required before an absolute title vests in the widow as against the heir, where the homestead is the only real estate owned by a decedent.

Appellant contends further that under the evidence the west 50 feet was not a separate and distinct parcel, but a part and parcel of the 100-foot lot, all conveyed to Sol and Rhoda under one deed. We need not review the evidence on this point, because appellant can take nothing, if her contention be sustained.

It is without dispute that...