Lester v. Stroud

• Decision Date: 22 January 1925
• Docket Number: 7 Div. 442
• Citation: 103 So. 692,212 Ala. 635
• Parties: LESTER et al. v. STROUD et al.
• Court: Alabama Supreme Court

103 So. 692

212 Ala. 635

LESTER et al. v. STROUD et al.

7 Div. 442

Supreme Court of Alabama

January 22, 1925

Rehearing Denied April 16, 1925

Appeal from Circuit Court, Calhoun County; A.P. Agee, Judge.

Bill in equity by J.W. Lester and others against Mary Stroud and others, to cancel, for fraud, proceedings in the probate court allotting homestead exemption to the widow of a decedent. From a decree sustaining demurrer to the bill complainants appeal. Reversed, rendered, and remanded.

Chas F. Douglas, of Anniston, for appellants.

Merrill & Allen, of Anniston, for appellees.

Statement.

BOULDIN J.

Complainants are the heirs at law of the deceased husband, and respondents are the devisees of the widow, claiming through such proceedings purporting to vest an absolute title in the widow. The appeal is from a decree sustaining demurrers to the bill. The case made by the bill is, in substance, this L.T.R. Lester, a resident of Alabama, died in 1909, leaving his widow, Hattie Lester, and no minor children or other lineal descendants. At the time of his death he owned and occupied as his residence a lot and dwelling house thereon in the city of Anniston. This lot, 57 1/2 by 125 feet, was used in connection with the dwelling, except a parcel 30 by 60 feet in one corner, whereon was a store building in which decedent was conducting a mercantile business. He also owned at the time of his death two other lots in Anniston, each with a residence thereon, one located across the street from the family residence, and one several blocks therefrom, both rented and occupied by tenants of decedent, and not used as a part of the homestead. The value of the entire property at the time of his death exceeded $2,000, and was approximately $4,000.

The heirs of L.T.R. Lester were his brothers and sisters and the descendants of a deceased brother. Shortly after his death Hattie Lester, the widow, had prepared a deed to be executed by the heirs conveying all the property to her, and presented it to some of them, assembled at her instance, requesting its execution. This request was held open for consultation with the other heirs, resulting in an agreement among the heirs not to sign the deed, but to let the widow have the possession, use, and income of the property for her life, after which it should come to the heirs. This agreement was communicated to the widow, who replied she only wanted the use of the property for her life, had feared the heirs would dispossess her, and expressed satisfaction and gratitude for the consideration shown her. Thereafter the widow and heirs living near her visited each other, maintained cordial relations, and the widow often expressed her thanks for the use of the whole property for her life, conferred with them about repairs, and otherwise indicated she was holding the property pursuant to this family arrangement.

Eleven years after the death of the husband, while this status continued, the widow took out letters of administration on his estate, with no occasion therefor, and, about three months thereafter, instituted proceedings and caused the entire property to be set apart to her as a homestead in such form as to vest in her the absolute title to the property. A copy of these proceedings is exhibited to the bill. No issue is made upon their form or sufficiency. No other act of administration was done. Complainants had no notice nor knowledge of the grant of letters of administration, nor of the homestead proceeding, nor any intimation of any change of relation to the property, until after the death of the widow in January, 1923. Upon her death a will was presented, dated in 1921, devising the property to respondents, her kindred. This will was duly probated.

It is further averred that no dower was ever assigned, and the widow owned a separate estate greater in value than her dower interest. It is further averred that the relation growing out of the family agreement was one of trust; that the acts and words of the widow were such as to lead a reasonable person to believe she was so holding the property, and would protect the interest of the heirs; that they were led to believe there would be no occasion for them to be on the lookout for the protection of their title; that the probate proceedings were the result of deception, breach of trust, and fraud; and that her devisees are estopped to claim thereunder.

The prayer is that the probate proceedings be decreed void and set aside, and an accounting be had for rents after the death of the widow.

The demurrer, by apt grounds, challenges the sufficiency of the averments of fraud to warrant the relief prayed.

Opinion.

Under the averments of the bill, the widow's right of possession and use of the property, its income and profits, was limited to the house and lot occupied by decedent at the time of his death. Neither her homestead nor quarantine rights would entitle her to the possession of the other houses and lots upon the death of her husband. Code 1923, § 7918 (4196); Id. § 7437 (3824); Gilbert v. Pinkston, 167 Ala. 490, 52 So. 442, 140 Am.St.Rep. 89; Hays v. Lemoine, 156 Ala. 465, 47 So. 97.

Whether the homestead right of the widow extended to these outside properties, in the event the entire real estate did not exceed in area and value the exemptions allowed by law, we need not here inquire. Headen v. Headen, 171 Ala. 521, 54 So. 646; Thompson v. Miller, 204 Ala. 502, 85 So. 689.

No right of possession of lands, other than the homestead of the decedent, passes to the widow under her homestead right, whether for life or in fee, until it is set apart to her in the course of administration under pertinent statutes. Sections 7919 (4197), 7932 (4210), 7930 (4208), 7931 (4209)--or without administration, under section 7948 (4224). Thacker v. Morris, 166 Ala. 395, 52 So. 73; Hodges v. Hodges, 201 Ala. 215, 77 So. 741; Headen v. Headen, supra; Chavers v. Mayo, 202 Ala. 128, 79 So. 594. It follows that upon the death of the husband the legal title, with the immediate right of possession, to the two residences and lots rented by the husband to his tenants, and apart from his homestead, vested in his heirs, subject to be intercepted for purposes of administration.

When the heirs tendered the...