Haney v. Ray

• Decision Date: 19 January 1950
• Docket Number: 6 Div. 945
• Citation: 253 Ala. 224,43 So.2d 889
• Parties: HANEY et al. v. RAY et al.
• Court: Alabama Supreme Court

Page 889

43 So.2d 889

253 Ala. 224

HANEY et al. v. RAY et al.

6 Div. 945.

Supreme Court of Alabama.

Jan. 19, 1950.

Finis E. St. John, of Cullman, for appellants.

Wm. E. James, of Cullman, for appellees.

The motion to dismiss the appeal, on the ground that the decree from which the appeal is taken is not a final decree, sets forth that part of the decree as follows: 'As to whether or not the widow is entitled to the fee simple title to this land or a mere life estate under our statutes depends on one of two things, to-wit: (1) was the estate of J. S. Ray insolvent? or (2) was this farm in question the only real estate owned by the deceased? Not finding the answer to either of these questions in the evidence, and because of the importance of the matter the Court directs the register to ascertain by reference the answer to each of the above questions after giving notice to the solicitors representing the respective parties in this cause.'

BROWN, Justice.

J. S. Ray, a resident of Cullman County, died July 2, 1934, leaving surviving his widow Virginia Ray and several adult heirs and next of kin, children and grandchildren, including the complainants and a son John S. Ray, who with his mother Virginia Ray (now in her 85th year), are the defendants to the bill. The land in controversy was the homestead of the deceased and had been for many years. It consisted of a well improved farm of 49 acres in a good state of cultivation with a residence, barn and tenant house located in a good community convenient to church and schools and on a main public road and mail route, a short distance from Cullman, the county seat, Vinemont, a railroad town, and Eva a small village.

There has been no administration on the estate and no steps have been taken, up to the filing of the bill, to have homestead exemptions and dower set apart to the widow. She has been in the occupancy of said home, using and renting the same and receiving the usufruct thereof under her quarantine rights.--Code of 1940, Title 34, § 50, Clancy v. Stephens, 92 Ala. 577, 9 So. 522, 524.

The bill filed by the adult heirs alleges that while the said homestead lands are less in area than 160 acres, said lands are worth more than $2,000 in value, and it seeks to have the homestead and dower rights of the widow ascertained and set apart to her and for a sale of any excess over such rights for division amongst the heirs and next of kin of said J. S. Ray and for general relief.

The defendants filed their answer admitting the formal averments of the bill but denied that J. S. Ray owned the fee simple title to the lands described in the bill and that said decedent owed no debts at the time of his death, admitting that no administration was had on his estate; that the complainants and respondents are the widow and only heirs at law of said decedent; that dower has not been assigned to the widow. The answer denies that the lands exceed in value the amount exempted by law to the widow as a homestead and the mortgage thereon and further denies 'that any of the complainants have any interest in said lands whatsoever.' The answer of the respondent Virginia Ray further alleges, '* * * as a basis for cross bill, that there was a mortgage on the homestead of her husband J. S. Ray, deceased, on which there was over $200.00 due at the time of his death. That she paid the same off with her money. (A copy of the mortgage was made exhibit to the answer and cross-bill.) That said land and the mortgage on the same were worth less than $2,200.00 at the time of the death of her said husband, J. S. Ray, on the 2nd day of July, 1933. That she is entitled to have all of said land set apart to her as her homestead and have title in fee simple adjudged to her to same because she paid off said mortgage and said homestead was worth less in value than $2,200.00 at the time of her husband's death, they having no minor children on said date of July 2, 1933.'

The widow prays in said cross-bill that she be subrogated to the rights of the mortgagee, 'that all of said lands be adjudicated to have been worth less than $2,200.00 at the date of the death of her husband. * * * And that a decree be entered vesting in her the absolute title in fee simple.'

The answer and cross-bill were amended by changing the date of J. S. Ray's death, alleging that the same occurred in July 1934 and adding the allegation 'that all the land left by the husband J. S. Ray of respondent Virginia Ray at the time of his death constituted his homestead.' The complainants' answer to the amended cross-bill 'denies each and every material averment contained in said cross-bill as amended.'

The parties took the depositions of 20 odd witnesses before commissioners touching the character, condition, desirability and the value of the property constituting the homestead of said decedent at the time of his death. The only witness whose testimony was given ore tenus was that of the widow Virginia Ray who expressed no opinion as to the value of the farm home where she had spent the better part of her life with its joys and memories. She testified that she paid the mortgage with money of her own and she had not...