Griffin v. Griffin

• Decision Date: 15 January 1914
• Citation: 64 So. 350,185 Ala. 198
• Parties: GRIFFIN et al. v. GRIFFIN.
• Court: Alabama Supreme Court

64 So. 350

185 Ala. 198

GRIFFIN et al. v. GRIFFIN.

Supreme Court of Alabama

January 15, 1914

Appeal from Law and Equity Court, Lee County; Lum Duke, Judge.

Bill by Mary E. Griffin against W.S. Griffin and another, to remove an estate from the probate to the chancery court, and set aside the widow's exemptions and dower. From a decree overruling demurrers to the bill, respondents appeal. Affirmed.

Barnes & Denson, of Opelika, for appellants.

Albert E. Barnett, of Opelika, for appellee.

SOMERVILLE, J.

The only question presented by the record is whether a widow's petition for the allotment of homestead in this state must expressly aver that she, as well as her deceased husband, was a resident of this state at the time of his death. It appears from the record in this case that the petitioner's deceased husband, through whom she claims the homestead, was a resident of Opelika, Lee county, Ala. The domicile of the husband is in law the domicile of the wife also. Talmadge v. Talmadge, 66 Ala. 199; Ex parte Pearson, 76 Ala. 525; Harrison v. Harrison, 20 Ala. 629, 56 Am.Dec. 227. 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.

Presumptions of law need not be expressly affirmed in pleadings, and it was therefore not incumbent upon the widow in this case to aver that she was a resident of the state, and the demurrer was properly overruled.

The effect of the widow's nonresidence upon her homestead rights under our statutes is argued by counsel in their briefs, but the question is not presented by the record, and we do not feel justified in going out of the record to decide a question that may not arise upon the trial.

The judgment overruling the demurrer will be affirmed.

Affirmed.

ANDERSON, McCLELLAN, and SAYRE, JJ., concur.