Harrod v. Farmer, 3 Div. 917

• Decision Date: 01 February 1962
• Docket Number: 3 Div. 917
• Citation: 139 So.2d 115,273 Ala. 298
• Parties: Ora HARROD et al. v. Gertrude M. FARMER.
• Court: Alabama Supreme Court

Page 115

139 So.2d 115

273 Ala. 298

Ora HARROD et al. v. Gertrude M. FARMER.

3 Div. 917.

Supreme Court of Alabama.

Feb. 1, 1962.

Rehearing Denied March 29, 1962.

H. T. Fitzpatrick, Jr., Montgomery, for appellants.

Hill, Hill, Stovall & Carter, Montgomery, for appellee.

SIMPSON, Justice.

This is an appeal from a decree overruling the demurrer of appellants (next of kin) to the petition of appellee (as widow) to set aside as her homestead land of her deceased husband in fee simple without limit as to value.

Rufus Farmer, a resident of Montgomery County, died intestate October 21, 1956. Gertrude M. Farmer, his widow, was duly appointed administratrix of the estate by decree of the Probate Court of the County. Thereafter, upon petition of the administratrix, administration of the estate was removed from the Probate Court to the Circuit Court, In Equity. After removal, appellee filed her petition to set aside homestead to her.

The petition alleges that at the time of his death decedent owned and occupied as his homestead the tract of land described in the petition being less in area than 160 acres (approximately 5 acres) and constituting all of the real estate owned by decedent at the time of his death. The petition further alleges that decedent left no children or descendants of deceased children and was not survived by either parent, and his sole and only heirs at law and next of kin are his widow, the petitioner-appellee, and two sisters, the respondents and appellants. It is further alleged that petitioner, after exhausting other assets, paid out of her own funds the remaining indebtedness owing by decedent at the time of his death, and that there are no outstanding debts owing by decedent. The prayer of the petition is that notice issue to appellants as heirs at law of decedent, and that on the hearing of the cause the court will judicially determine that the real estate described is all the real estate owned by decedent at the time of his death and is exempt to petitioner, the widow, as her homestead and will order and decree that the property has vested in petitioner in fee simple.

The proposition appellants advance as the single question involved is: 'Does the homestead of a childless, Alabama resident, dying intestate after September 19, 1953, vest in the widow absolutely, in fee simple, if it does not exceed 160 acres in size and if all debts of the estate are paid, even though said homestead exceeds the sum of $6,000.00 in value?' Appellants say that under the law of this State it does not, but that the widow may have only a life estate. Appellee contends that the widow is entitled to the property in fee by virtue of §§ 661 and 663, Title 7 of the Code as amended.

The effect of § 661 as last amended was to increase the value of the homestead from two thousand to six thousand dollars, to delete the provision for absolute vesting of title of the homestead in the widow and minor children where the estate is insolvent, and to add the following sentence:

'Except when the homestead is devised by will it shall vest in the widow and the minor children for the life of the widow or the minority of the children whichever may last terminate, without limit as to value, if there are no debts, or if the remainder of the estate is sufficient to pay all debts and claims against the estate, or if the remainder of the estate is insufficient to pay all claims against the estate and if the widow or minor children shall pay the remaining unsatisfied claims. In no case, however, shall the homestead exceed 160 acres in area.'

Section 663, Title 7 of the 1940 Code was repealed by the Act of 1951, but was amended and reenacted in 1953 (Acts 1953, p. 1128). That statute now reads:

'When all real estate of decedent set apart as homestead, title vests absolutely.--When the homestead set apart to the widow and minor children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, whether there be administration on the estate or not and whether the estate be solvent or insolvent, the title to such homestead vests absolutely in the widow, the children (minors and adults) and the descendants of deceased children; or if there be no widow, in the children (minors and adults) and the descendants of deceased children; and if there be no children or descendants of deceased children, in the widow. Provided that when there are children and a widow the homestead so vested shall not be sold for division during the life of the widow and the minority of the child or children, without the consent of the widow and the legally appointed representative of the minor children. And provided further that when the homestead is so vested and there are a widow and minor children the widow and minor children shall be entitled to the exclusive possession of such real property for the life of the widow and the minority of the children; where there are both minor and adult children the minor children shall be entitled to the exclusive possession of such real property during their minority; and where there is a widow but no minor children such widow shall be entitled to the exclusive possession of such property during her life. As against creditors of decedent the title to the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by the decedent, and that it is of greater value than six thousand dollars, and the homestead secured thereby shall be held and governed as in section 661 of this title.' (Emphasis supplied.)

Appellants' contention is that the above quoted provision of § 661 did no more than grant a life estate in the widow and could not be made the basis for a fee simple title. The reasoning is thus summed up in the brief: 'In 1951, when section 661 as it now exists was enacted, former section 663 was simultaneously repealed. Besides raising the exemption from $2,000.00 to $6,000.00 in value, the 1951 act deleted all provisions for the absolute vesting of the homestead in the widow, but provided her instead with a lifetime interest in the property under the particular circumstances of the instant case, without limit as to value. See Ganus v. Sullivan, supra (267 Ala. 16, 90 So.2d 204); Mitchell v. Mitchell, 258 Ala. 572, 64 So.2d 104, which comment on these 1951 Code changes. Thus, when the value limit was removed, and in effect substituted for absolute vesting, absolute vesting was abolished, and no longer existed.'

With this contention we cannot agree. Nor is it in any wise sustained by the authorities cited. In the first place, it concentrates upon the widow and makes...