Johns v. Cannon

• Decision Date: 01 February 1917
• Docket Number: 6 Div. 450
• Citation: 74 So. 42,199 Ala. 138
• Parties: JOHNS et al. v. CANNON.
• Court: Alabama Supreme Court

74 So. 42

199 Ala. 138

JOHNS et al. v. CANNON.

6 Div. 450

Supreme Court of Alabama

February 1, 1917

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Bill by Rose Johns Cannon, for homestead exemptions to be carved out of certain real estate, upon sale of the same. Decree for complainant, and the heirs of L.W. Johns, deceased, former husband of petitioner, appeal. Affirmed.

Cabaniss & Bowie, of Birmingham, for appellants.

Burgin & Brown, of Birmingham, for appellee.

MAYFIELD J.

The abstract question of law involved on this appeal is whether or not a widow who would otherwise be entitled to homestead rights in the lands of her deceased husband would lose or forfeit such rights by intermarrying with a nonresident and removing with him from the state pending proceedings to have her homestead rights allotted to her, and afterwards, but before the consummation of such proceedings, returning with her husband to reside in the state. We feel no doubt that this question is correctly answered in the negative. The concrete case presented by the appeal is that appellee was the widow of one L.W. Johns, who died in the year 1912, in the city of Birmingham, leaving a considerable estate both in personalty and in lands. Appellee, as the administratrix of the estate of her deceased husband, proceeded in the probate court of Jefferson county soon after the death of her said husband, to administer on the estate and to have allowed and allotted to her, her statutory exemptions as widow. The personalty was so allotted to her as such widow, but as to her homestead rights the allowance or allotment was not consummated in the probate court, because the commissioners appointed to allot the same reported that the homestead of the deceased husband, "after being reduced to its lowest practical area, still exceeds $2,000 in value, thereby rendering it impracticable to allot and set it off." Before sale of the homestead for the purpose of allowing $2,000 of the purchase price to be set aside to the widow as a homestead fund, as section 4220 of the Code directs, the administration of the whole estate, including the allotment of homestead, was removed into the chancery court of Jefferson county; and the widow, pending the proceedings, remarried, becoming the wife of a Mr. Cannon, who then resided in St. Louis, Mo. The parties resided for a time in Missouri; but both removed back to Birmingham, Ala., before the allotment of homestead and the conclusion of the administration of the estate, and were there residing when the decree was rendered allowing Mrs. Cannon $2,000, as a homestead fund, out of the estate of her former (deceased) husband. From the decree mentioned this appeal is prosecuted.

The main contention for appellants on this appeal is that appellee, as the widow of L.W. Johns, lost, forfeited, or abandoned her right to homestead by changing her residence to Missouri, as above indicated, and that this right did not reattach upon her subsequently becoming a resident of Alabama. A great deal of the argument and brief of counsel on each side is taken up in discussing the questions and citing authorities, to the end of showing that appellee, by intermarrying with Mr. Cannon, who resided in Missouri, and living there with him, lost her residence and domicile in Alabama. In the view we take of the case it is not necessary or important to consider these questions, for the reason that, even if appellants' contention as to the fact of a change of residence and domicile be correct, appellee's homestead right, which had theretofore attached, would not thereby be cut off or defeated.

It is true that this court has repeatedly declared that exemption and homestead statutes are intended for the benefit of residents only; but those decisions were construing statutes which exempted property to the resident only, or to "members of his family," and were not construing the statutes as now written. So far as our Constitution and statutes now exempt property to residents only, they are, and should be, so construed; but when the statutes no longer require that the widow or the minors be members of the husband's, or father's, family, in order to be entitled to the exempt property, the court should not write into such statutes such provisions, or that these parties must continue to reside in the state in order to enjoy the property which the statutes exempt to them on the sole conditions that the husband or father was a resident of the state at the time of his death, and owned such property as is exempt, and that the parties to whom it is exempt were then his widow or minor children, no matter where they resided. This change in the statutes, and therefore of the decisions, was recently pointed out by Mr. Justice Sayre, in the opinion of the court in the case of Chamboredon v. Fayet et al., 176 Ala. 216, 57 So. 846, where it is said:

"It seems to be contended, on the authority of Ex parte Pearson, 76 Ala. 521, that complainant's ward is not entitled to exemptions of any sort, because she was never a member of decedent's family. In that case it was held that the exemptions of personal property to the widow and minor children of a decedent, under the Code of 1876, like the exemption of a homestead, contemplated the existence of a family relation in this state, so that where a decedent died in this state, after a residence of several years, while his wife and children continued to reside at his former residence in another state, and never came to this state until after his death, they were not entitled to statutory exemptions of personalty. This was put upon the language of section 2824 of the Code of 1876, providing that 'any person dying leaving a widow, or child, or children, under the age of twenty-one years, members of his family, in addition to the exemption heretofore made under this chapter [homestead exemption], there shall be exempt all the wearing apparel of the deceased,' etc. But the law was significantly changed in the codification of 1886, when the section was made to read: 'In favor of the widow and minor child or children, or either, of such decedent, there shall be exempt from administration and the payment of debts *** all the wearing apparel of the decedent,' etc. Code 1886, § 2545. Such has been the language of the provision since that time. Code 1907, § 4199. And in 1903 (Acts 1903, p. 150) section 2070 of the Code of 1896, which provided for exemptions

in lieu of homestead, was amended so as to read as section 4197 of the Code of 1907 now reads; the effect being that, if decedent, at the time of his death, has no homestead exempt to him, or has no other real estate out of which a homestead can be carved, 'the widow and minor children, or either of them, may by petition in the probate court, or by bill in equity, have the homestead or any other real estate owned by the decedent at the time of his death sold, and two thousand dollars of the purchase money therefor applied by the court in the purchase of a homestead for the benefit of such widow and minor children, or either of them.' *** But for the decree of divorce the wife would have been entitled to homestead, notwithstanding she had lived apart from her husband for years prior to his death. Coker v. Coker, 160 Ala.

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