Haynes v. Haynes

• Citation: 181 So. 757,236 Ala. 331
• Decision Date: 12 May 1938
• Docket Number: 6 Div. 267.
• Parties: HAYNES ET AL. v. HAYNES.
• Court: Supreme Court of Alabama

181 So. 757

236 Ala. 331

HAYNES ET AL. v. HAYNES.

6 Div. 267.

Supreme Court of Alabama

May 12, 1938

Rehearing Denied June 16, 1938.

Appeal from Circuit Court, Cullman County; A. A. Griffith, Judge.

Bill to sell lands for division among joint owners or tenants in common, by Everett S. Haynes, individually and as administrator of the estate of Henry Robert Haynes, deceased and others against Cornelia Aleen Haynes and others, and cross-bill by respondent Cornelia Aleen Haynes to have the lands set aside to her as a homestead. From a decree for respondent (cross-complainant), original complainants (cross-respondents) appeal.

Affirmed.

James &amp Stewart, of Cullman, for appellants.

Thos W. Millican, of Cullman, for appellee.

THOMAS Justice.

The facts are stated by appellants substantially as follows:

Appellants are the adult heirs-at-law of Henry Robert Haynes, deceased. Appellee is the minor child of said decedent, who died in Cullman County, Alabama, on July 9, 1933, leaving appellants appellee and other children and a widow, who was the mother of appellants, appellee and other children in the family. At the time of his death, decedent owned the Northwest fourth of the Northeast fourth of Section nineteen, Township ten, Range three west, containing forty acres more or less, situated in Cullman County, Alabama, on which the deceased resided as a homestead. The widow of said Henry Robert Haynes later died without having had the above property set apart to her as a homestead, nor was it set aside to appellee during the life of the widow.

Appellants filed their original bill to sell this land for division and appellee answered with a cross bill praying that the property be set aside to her as a homestead, that it be declared to vest in her absolutely, averring that the property was not of value in excess of $2000 at the date of the death of said decedent, and was all the lands of decedent.

It is contended by appellants that upon the death of the widow (mother of these parties and other children), "that the portion of the homestead which would have gone to the widow, had it been set apart to her during her life," vested in the parties and the other children and is subject to distribution, after termination of the homestead right of appellee, "even if the value of the property was not in excess of $2,000." It is further insisted by appellants that the land exceeded $2,000 in value at the date of the death of decedent.

It is declared by statute that, "When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title of such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not; but the title to the homestead shall not vest absolutely in them as against the other heirs of decedent until it is so set apart and until it is judicially determined that it is all the real estate owned by the decedent, and that it is not of greater value than two thousand dollars; but as against the creditors of decedent, the title of the homestead will be presumed to be absolute until it is judicially determined that it is not all of the real estate left by decedent, and that it is of greater value than two thousand dollars, and the homestead secured hereby shall be held and governed as in section 7918 (4196)." [ Section 7920, Code of 1923.]

The law in force at the time a homestead estate vests by death of intestate controls. Long v. Brown, 206 Ala. 154, 89 So. 614; Williams v. Overcast et al., 229 Ala. 119, 155 So. 543.

It follows that the value of the homestead must be determined as of the date of the death of decedent. Wright v. Fannin, 229 Ala. 278, 156 So. 849; Long v. Brown, supra; Ticer v. Holesapple, 226 Ala. 271, 146 So. 614; Williams v. Over cast et al., supra.

It has been declared that when a resident dies, leaving two or more parties entitled to homestead exemption under conditions that the title would vest unconditionally in such exemptioners, and homestead exemption is not claimed and judicially determined until after the death of one or more so entitled, the survivor or survivors may have homestead determined and set aside.

What then is the status of the other heirs of such decedent? It is clear that such homestead shall not vest absolutely in such exemptioners as against the other heirs of such decedent until it is judicially or duly set apart, and that necessitates a determination of the questions (1) whether or not the homestead is of greater or less value than $2000.00, and (2) whether or not it is all the real estate owned by decedent at the time of his death.

It would appear that the effect of Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113, and Wiggins v. Mertins, 111 Ala. 164, 169, 20 So. 356, is that the survivor may have homestead set aside, but that the other legal heirs of such decedent are entitled to share in the distribution of the estate after the determination of homestead as to the share of the exemptioner or exemptioners whose right was not determined during the life of such exemptioner or exemptioners. Such was the effect of the majority opinion in Williams v. Overcast, supra. And this is in line with the purposes of Section 7956 of Michie's Code.

In Wiggins v. Mertins, Guardian, 111 Ala. 164, 168, 20 So. 356, 358, it is observed: "The next question is whether, when a decedent...