Hames v. Irwin

• Decision Date: 15 April 1926
• Docket Number: 8 Div. 813
• Citation: 108 So. 253,214 Ala. 422
• Parties: HAMES et al. v. IRWIN et al.
• Court: Alabama Supreme Court

108 So. 253

214 Ala. 422

HAMES et al. v. IRWIN et al.

8 Div. 813

Supreme Court of Alabama

April 15, 1926

Appeal from Circuit Court, Lawrence County; J.E. Horton, Judge.

Bill in equity by Nina Lois Hames and others against D.W. Irwin and others, with cross-bill by latter. From a decree for respondents, complainants appeal. Reversed and remanded.

E.W Godbey, of Decatur, for appellants.

Wert &amp Hutson, of Decatur, for appellees.

SAYRE J.

In its final shape the bill in this cause, filed by Nina Lois Hames and George Irwin Hames, minor children and heirs at law of L.R. Hames, deceased, by their next friend, sought a declaration of insolvency of the estate of deceased; that a homestead be set apart to them as absolutely exempt; and that the remainder of the real estate left by deceased be sold for division among complainants and five other children, adults. The widow and the other children of deceased were made parties defendant, as was D.W. Irwin, alleged to be the only creditor, and it was averred that, after the death of L.R Hames, his widow, Ida A. Hames, and two of the adult children joined in executing a mortgage of the lands owned by deceased, 160 acres, by which they undertook to secure to Irwin the payment of his debt. This mortgage had been foreclosed, and Irwin had become the purchaser at the foreclosure sale, as authorized by the terms of the instrument. By cross-bill the widow and the two children who had joined in the mortgage challenged the validity of the mortgage as being without consideration, but the decree adjudicated its validity; that it had been taken in full satisfaction of Irwin's claim against the estate; and other matters that, for a reason to be stated later on, cannot be considered on this appeal. This appeal is prosecuted by the infant complainants, who contend that the decree in the court below was error, in that it awarded to them a homestead during minority only, and not in absolute fee. The court was of opinion that there should be no decree of insolvency in this proceeding, though such decree might have been proper had the estate been administered and the claim of Irwin filed in regular course. In support of this opinion the court refers to the fact that the creditor, Irwin, took his mortgage in satisfaction of his claim against the estate of decedent, and had relinquished all other or further claim against that estate, and upon this fact, as we view the record, was based the court's rejection of complainants' prayer for a decree of insolvency and an assignment of homestead in absolute fee.

The statutory provision is that "Such homestead"--that is, the homestead of a resident of this state, leaving surviving him a widow and minor child or children--"may be retained by the widow or minor child or children, until it is ascertained whether the estate is solvent or insolvent; and, if the estate is insolvent, it shall vest in them absolutely." Code 1923, § 7918.

As for the jurisdiction of the circuit court sitting in equity to render a decree of insolvency, with its appropriate effect upon the character of the homestead title to be vested in the widow and minor children, time was when there was thought to be eminent fitness in having the settlement of an insolvent estate finished in the probate court, unless there was involved some question of exclusive equitable cognizance, and that, when the probate court acquired jurisdiction by an adjudication of insolvency, all interference by the chancery court was precluded, unless a special equity was shown. Shackelford v. Bankhead, 72 Ala. 476. But now the administration of any estate may be removed from the probate to the circuit court, sitting in equity, at any time before final settlement, on the declaration by heir, devisee legatee, distributee, or administrator that in his opinion the estate can be there better administered, without more. Code, § 6478. It would seem to follow that any such party in interest may in the beginning file his bill for an administration in the circuit court, and that is the effect of what was done in this case, no step for an administration having been taken in the...