Matthews v. Matthews

• Decision Date: 30 October 1947
• Docket Number: 8 Div. 363.
• Citation: 249 Ala. 611,32 So.2d 514
• Parties: MATTHEWS et al. v. MATTHEWS.
• Court: Alabama Supreme Court

32 So.2d 514

249 Ala. 611

MATTHEWS et al. v. MATTHEWS.

8 Div. 363.

Supreme Court of Alabama

October 30, 1947

Proctor & Snodgrass and Jas. M. Proctor, all of Scottsboro, for appellants.

Milo Moody, of Scottsboro, and H. G. Bailey, of Boaz, for appellee.

SIMPSON Justice.

The decree, here challenged, ordered the sale of lands for the allotment to appellee of homestead exemptions, as the widow of her late husband, M. B. Matthews, deceased.

The controverted issue was whether or not the decedent at the time of his death was a bona fide resident of Alabama thereby entitling the widow to the exemptions allowed under the statute.

The prerequisite to a widow's right to homestead exemptions is the residence in this state of her husband at the time of his death and residence as here considered means domicile the place where his habitation was fixed without any present intention of changing it. Lucky v. Roberts, 211 Ala 578, 100 So. 878; Thomas v. Thomas, 245 Ala. 607, 18 So.2d 544.

In discussing the precise question, it was pointed out in Herzfeld v. Beasley, 106 Ala. 447, 449, 17 So. 623 '* * * That in order to lose a residence, when once acquired in this state, and the protection of the exemption laws, there must be a removal in fact, with the intent that it is not merely temporary. Talmadge's Adm'r v. Talmadge, 66 Ala. 199; McCrary v. Chase, 71 Ala. 540; Caldwell v. Pollak, 91 Ala. 353, 8 So. 546; Bragg v. State, 69 Ala. 204; Glover v. Glover, 18 Ala. [367], 370; Davis v. Allen, 11 Ala. [164], 165.'

And on the question of the change of domicile, we pointed out in the recent case of Ex parte Weissinger, 247 Ala. 113, 117, 22 So.2d 510, 513: 'A change of domicile cannot be inferred from an absence, temporary in character, and attended with the requisite intention to return. To the fact of residence in the new locality there must be the added element of the animus manendi before it can be said that the former domicile has been abandoned. The intention to return is usually of controlling importance in the determination of the whole question. * * *'

The evidence was in conflict, but we are in accord with the conclusion of the trial court that it strongly sustained the contention of the widow that at the time of her husband's death he was a resident of the state. True, it could be deduced that at one time he had left his old home in Jackson County and removed his residence to Georgia, but, later,...