MacPherson v. Tillman

• Decision Date: 28 May 1982
• Citation: MacPherson v. Tillman, 414 So.2d 943 (Ala. 1982)
• Parties: Mary Lee MacPHERSON v. Gordon TILLMAN, et al. 81-494.
• Court: Alabama Supreme Court

Page 943

414 So.2d 943

Mary Lee MacPHERSON v.Gordon TILLMAN, et al.

81-494.

Supreme Court of Alabama.

May 28, 1982.

T. Schram Woodroof of Woodroof & Woodroof, Athens, for appellant.

W. W. Malone, Jr. and Alice J. Hancock of Malone, Owens, Hancock & Totten, Athens, for appellees.

FAULKNER, Justice.

James A. MacPherson and his brother, Cuthbert, owned 100 acres of land in Limestone County as tenants in common.Mary Lee MacPherson became the wife of Cuthbert in 1942.Mary and Cuthbert moved into a house on the 100 acre tract of land.James A. MacPherson also lived in the house from time to time.

James smoked a pipe, much to the annoyance of Mary.In 1959, the two brothers transferred one acre from the 100 tract of land to Mary.She built a small house on the land, about 100 yards from the old house.She and her husband, Cuthbert moved into the new house.Cuthbert resided in the new home until the time of his death in 1971.Mary remains in the house at present.

Prior to Mary and Cuthbert's marriage, Cuthbert farmed part of the 100 acres, and raised cattle and chicken on the land.These activities continued after the couple moved into the new house.Cuthbert was in charge of farming activities, and when he became too old to farm the land, he rented the land.Mary and Cuthbert also had a garden for their personal use on the property owned jointly by Cuthbert and his brother.

Cuthbert MacPherson died intestate in 1971, still married to Mary.At the time of his death, Cuthbert owned the remaining 99 acres of land as a tenant in common with his brother.

Cuthbert left no children or descendants.Nevertheless, under the applicable statute of descent and distribution, Cuthbert's interest in the property descended to his brother.James died subsequent to Cuthbert's death.

On April 16, 1980, Mary MacPherson brought an action to claim a homestead exemption in the 99 acres owned by Cuthbert and James.Mrs. MacPherson sought to have the title to the property vested in her in fee simple.Mrs. MacPherson alleged that the property was worth more than $6,000.00, and that it did not exceed 160 acres in area.Mrs. MacPherson brought the action against the descendants of James MacPherson.The parties agreed to a stipulation of facts.The trial court granted the motion for summary judgment filed by James's heirs.The widow appeals.

Section 6-10-60,Code 1975, permits a surviving spouse to claim a homestead exemption in up to 160 acres.Section 6-10-62 vests title to the homestead in the surviving spouse if the realty is the only real property owned in the State by the decedent at the time of his or her death.

The key issue presented in this case is whether the 99 acres held by Cuthbert and James MacPherson is "homestead property."In Skipworth v. Skipworth, 383 So.2d 524(Ala.1980), this Court repeated the definition of homestead property given in an earlier decision:

"In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and payment of debts.Title 7, Sections 661,663,697, Code of Alabama, 1940(Recompiled 1958).Although the term 'homestead' is not defined in the statute, this court has stated that '[a] homestead, in law, means a home place, or place of the home, and is designed as a shelter of the homestead roof, and not as a mere investment in real estate, or the rents and profits derived therefrom.'Griffin v. Ayers, 231 Ala. 493, 496, 165 So. 593, 595(1936).It has been further defined as 'the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family * * * 'Moseley v. Neville, 221 Ala. 429, 431, 129 So. 12, 14(1930), quoted inGriffin v. Ayres, supra.Normally the land must have been occupied by decedent prior to his death.Turner v. Turner, 107 Ala. 465, 18 So. 210(1895).Contiguous real estate used for rental or commercial purposes and not used by the homeowner or his family is not within the 'homestead.'Griffin v. Ayers, supra;Turner v. Turner, supra.But seeCade v. Graffo, 227 Ala. 11, 148 So. 591(1933), where contiguous property rented to others was determined to be part of the homestead because it was also used by the owner in connection with the homeplace."

In Lacey v. Davis, 361 So.2d 543(Ala.1978), this Court stated:

"The dwelling site is not the only object of protection.Appurtenant land is included in the homeplace if used for the actual benefit of the family....

'The statute protects the roof that shelters and the land used in connection therewith for the comfort and sustenance of the family.' "

On several occasions, this court has permitted a surviving spouse to claim homestead in land appurtenant to the family's dwelling.See, e.g., Lacey v. Davis, 361 So.2d 543(Ala.1978);Mullins v. Baker, 193 Ala. 594, 69 So. 516(1915);Tyler v. Jewett, 82 Ala. 93, 2 So. 905(1886).Nevertheless, in each of those cases, the land on which the family dwelling was located was owned by the same spouse who owned the land appurtenant to the family dwelling.This Court has never permitted a spouse to claim homestead in appurtenant land which is the separate property of the other spouse.SeeGreer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513(1945);Beard v. Johnson, 87 Ala. 729, 6 So. 383(1888).

This Court addressed the issue of claiming homestead in a spouse's appurtenant but separate property in Greer v. Altoona Warehouse Co., 246 Ala. 297, 20 So.2d 513(1945).In that case, three separate tracts of land were involved.Tract I was the separate property of the wife, Tract II was owned jointly by the husband and wife, and Tract III was owned by the husband.The husband claimed a homestead exemption on each of the tracts in a suit by a creditor to levy against the property.The issue was on what tracts could the husband claim a homestead exemption.The trial court held that Tracts I and II were impressed with a homestead exemption.

This Court reversed, holding that only Tract II was homestead property.The Court found that Tract III was not used as homestead property.The Court stated that even if the homestead was on Tract I, "constituting the separate estate of the wife, the husband was in no position to claim the same as a homestead or to annex thereto the property in which he had an interest as tenant-in-common, or which he owned in severalty "(emphasis...