Locke v. Locke

• Citation: 291 Ala. 344,280 So.2d 773
• Parties: Louise L. LOCKE v. Martha A. LOCKE et al. SC 148.
• Decision Date: 19 July 1973
• Court: Supreme Court of Alabama

Page 773

280 So.2d 773

291 Ala. 344

Louise L. LOCKE v. Martha A. LOCKE et al.

SC 148.

Supreme Court of Alabama.

July 19, 1973.

Adams, Gillmore & Adams, Grove Hill, for appellant.

Armbrecht, Jackson & DeMouy and Broox G. Homes, Mobile, Scott & Porter, Chatom, for appellees.

HEFLIN, Chief Justice.

This is an appeal from the Circuit Court of Choctaw County, Alabama, in equity, wherein the appellant-complainant Louise L. Locke filed a bill seeking a declaration of her interest in certain real estate which allegedly constituted the homestead owned by her late husband, Robert Locke, at the time of his death.

The bill, as last amended, which contained a prayer that the appellant-complainant Louise L. Locke be declared the fee simple owner of said real estate, contained averments that the geographical area of the real estate in question was less than 160 acres; that the decedent had occupied said real estate as his homestead at the time of his death; that the value of the real estate was more than $6,000.00; and that the decedent 'owned no other real property in the State of Alabama at the time of his death other than his said homestead and some minerals in and under certain land; . . ..'

The appellees-respondents (collateral heirs at law of Robert Locke and their vendees) filed demurrer to the bill on some 37 grounds. The demurrer was sustained by the lower court. Having alleged all prtinent facts upon which she believed herself to be entitled to the relief prayed for, Louise L. Locke moved for dismissal of her bill, which motion was granted. It is from this final decree that the appellant-complainant has taken appeal, assigning as error the ruling of the lower court sustaining the demurrer.

The attention of this court is directed to several grounds of the demurrer which asserted that the relief prayed for must be denied because the bill affirmatively shows on its face that the decedent owned realestate in Alabama other than the homestead at the time of his death. The portion of the bill to which the appellees-respondents refer contains the following allegation:

'The said Robert Locke (decedent) owned no real property in the State of Alabama at the time of his death other than his said homestead and some minerals in and under certain lands, the surface of which was owned by other parties; . . ..'

The homestead of a childless Alabama resident who dies intestate vests absolutely, in fee simple, in the widow only where, among other matters, said homestead is the only real estate owned by the decedent at the time of his death. Title 7, Section 663, Code of Alabama, 1940, as amended (Recompiled 1958); Nathanson v. Key, 286 Ala. 486, 242 So.2d 389 (1971). The bill in the case under review clearly shows that the decedent owned minerals in and under certain lands at the time of his death, as well as the homestead in question. Thus, the issue evolves to this: Are mineral rights such 'other real estate' as will prevent the vesting of fee simple title to the homestead in the appellant-complainant.

The appellant-complainant, of course, contends that they are not, and bases her argument on Sams v. Sams, 242 Ala. 240, 5 So.2d 774 (1942), in which it was held that a cemetery lot was not such 'other real estate' as would bar the vesting of fee simple title to the homestead in the widow. This court's holding in Sams was founded on the peculiar character of ownership of a cemetery lot. A cemetery lot is, in many respects, exempted from the operation and effect of some aspects of real property law. For instance, such property is not subject to administration (Kingsbury v. Flowers, 65 Ala....