Lucky v. Roberts

• Decision Date: 12 June 1924
• Docket Number: 8 Div. 626.
• Parties: LUCKY v. ROBERTS.
• Court: Alabama Supreme Court

100 So. 878

211 Ala. 578

LUCKY v. ROBERTS.

8 Div. 626.

Supreme Court of Alabama

June 12, 1924

Rehearing Denied June 30, 1924.

Appeal from Probate Court, Morgan County; L. P. Troup, Judge.

Petition of Juria Roberts to have lands set apart to her as a homestead, and contest by Lucy Lucky. From a decree for petitioner contestant appeals. Affirmed.

W. H Long, of Decatur, for appellant.

W. W Callahan, of Decatur, for appellee.

THOMAS J.

The submission was on motion and on merits. The motion to strike the bill of exceptions is based on the failure to set out consecutively the interrogatories propounded under the statute and the answers thereto. It is averred that questions of fact are thus obscured. However, the real issues are apparent. The motion is overruled.

The residence in this state of a decedent husband, at the time of his death, is the statutory prerequisite to give the right of homestead to the widow and the minor child or children of such decedent. Talmadge's Adm'r v. Talmadge, 66 Ala. 199; Curry v. Barnes, 200 Ala. 256, 76 So 22; Johns v. Cannon, 199 Ala. 144, 74 So. 42.

It is established in this jurisdiction that a person's domicile is that place in which his habitation is fixed, without any present intention of removing (Merrill's Heirs v. Morrissett, 76 Ala. 433), and it embraces (1) the fact of residence (Curry v. Barnes, supra) and (2) the intention to remain (Young v. Pollak, 85 Ala. 439, 5 So. 279; State v. Hallett, 8 Ala. 159; Glover v. Glover, 18 Ala. 367. It has been further declared that for the purpose of succession (a) a person can have but one domicile (Merrill's Heirs v. Morrisett, supra; Allgood v. Williams, 92 Ala. 551, 8 So. 722; Johns v. Cannon, supra; Curry v. Barnes, supra), and (b) when once acquired is presumed to continue until a new one is gained facto et animo (Glover v. Glover, supra; State v. Hallett, supra; Bragg v. State, 69 Ala. 204), and (c) what state of facts constitute a change of domicile is a mixed question of law and fact (Murphy v. Hunt, Miller & Co., 75 Ala. 438).

In Ex parte Pearson, 76 Ala. 523, 524, 525, 526, it is declared:

"While it has been uniformly held that the statutes allowing exemptions, being founded on the humane and benignant policy of the protection of the family from dependence and want, should be liberally construed, liberality of construction should not be extended so as to include cases without the spirit of the statute, and in contravention of the domestic policy of the state. *** To entitle the widow or children to the exemption provided by this section, it is essential that the decedent shall be a resident of the state, and that the wife and children shall be members of his family at the time of his death. *** It may be said generally, that to constitute a family, there must exist the relation of husband and wife, or of parent and child, or descendants of child; a condition of dependence on one or the other of these relations. It is not necessary that all shall actually live under the same roof, or within the same curtilage. Some may be temporarily absent, for the purposes of education, or of business, or pleasure, or from pressing necessity; but the residence of the husband and father must be the central place, which all regard, and to which there is the intention of returning, as the home-the center of common interests, of marital and parental dependence and domestic happiness. *** In case of realty, 'the homestead of the family' is in terms exempt; which implies actual occupancy and residence, except in case of a renting as provided by statute. The privilege of exemptions of personal property is allowed to the same class of persons-members of the family. It evidently was not the intention to confer a homestead exemption on persons only residing in the state, and at the same time to confer an exemption of personal property, whether the beneficiaries resided in or out of the state. *** They [the statutes] contemplate the collection of husband and wife, or of parent and children or descendants of children, under such circumstances that the condition of dependence on one of the relations, which is the essential characteristics of a family, exists in this state. In the case of a permanent separation, the wife and children continuing to reside in the state of the former residence, and the husband and father coming to and residing alone in this state, the condition of dependence, which entitles the widow and children to the exemptions in even of his death, does not exist."

Thus are the conditions of residence, relation, and dependence well stated, and given application by our court. Merrill's Heirs v. Morrissett, 76 Ala. 433; Chamboredon v. Fayet, 176 Ala. 211, 57 So. 845; Griffin v. Griffin, 185 Ala. 198, 64 So. 350.

The case of Johns v. Cannon, supra, contains the following:

"The residence

of the deceased on the land and in the state, at the time of his death, is all that the statutes require, to the vesting of the homestead in the widow and minors during the life of

...