McGregor v. McGregor

• Decision Date: 13 February 1947
• Docket Number: 6 Div. 504.
• Citation: 29 So.2d 561,249 Ala. 75
• Parties: McGREGOR v. McGREGOR et al.
• Court: Alabama Supreme Court

29 So.2d 561

249 Ala. 75

McGREGOR v. McGREGOR et al.

6 Div. 504.

Supreme Court of Alabama

February 13, 1947

Rehearing Denied March 13, 1947.

Smyer & Smyer and W. Bruce White, all of Birmingham, for appellant.

Sadler & Sadler and K. C. Edwards, all of Birmingham, for appellees.

LAWSON, Justice.

§ 272, Title 61, Code of 1940, prior to amendment read as follows 'When the sale is confirmed, the court, on the application of the widow, must make an order that a fair equivalent for the dower interest be paid to her by the personal representative, when the purchase money is collected, the value of such interest to be ascertained by proof, having regard to the age and health of the widow, but in no case to exceed one-sixth of the purchase money.' (Emphasis supplied.)

By an act approved July 6, 1945, said § 272, Title 61, supra, was amended to the extent that the maximum amount which could be allowed a widow as a fair equivalent for her dower interest was fixed at one third of the purchase money. Act No. 447 approved July 6, 1945, General Acts 1945, page 686. § 272, Title 61, Code 1940, was in no other way effected by the said 1945 amendment thereto.

The question presented by this appeal is which law governs the computation of the amount allowable to a widow out of the proceeds of the sale of land which belonged to her husband as a fair equivalent for her dower interest, a statute as it read at the time of the death of the husband, § 272, Title 61, Code 1940, or as amended subsequent to his death but prior to the date on which the sale of the land was confirmed, Act No. 447, approved July 6, 1945, General Acts 1945, page 686.

The trial court held the law in force at the time of the husband's death fixed 'the limit of the percentage of the purchase price allowable for the dower interest so sold,' and accordingly ordered that one sixth of the purchase price be paid to the widow, appellant, as the fair equivalent of her dower interest. Hence this appeal by the widow.

Arthur S. McGregor, husband of appellant, died intestate on December 12, 1943. At the time of his death he was a resident of Jefferson County. There were no surviving children. In addition to the widow, Bessie Mussey McGregor, he was survived by serveral brothers and sisters and by children of a deceased brother or sister.

On December 30, 1943, the Probate Court of Jefferson County granted letters of administration to the appellant, the widow. The estate was solvent and included, among there items of property, three parcels of real estate, but no homestead. The widow, appellant, had no separate estate.

When lands of an estate cannot equitably be divided among the heirs or devisees, it may be sold by order of the probate court having jurisdiction of the estate, when application for such sale is made in writing by the executor or administrator, and when an adult heir or devisee files written consent that such sale be had. §§ 245, 246, Title 61, Code 1940.

In the course of the administration in the probate court, the appellant, as administratrix, filed a petition on, to writ May 28, 1945, for the sale of one parcel of the real estate to wit, Lots 8, 9 and 10 in Block 154, Birmingham, Alabama. This petition was filed under §§ 245, 246, Title 61, supra, and alleged that the land could not equitably be divided or partitioned among the heirs or devisees. Albon V. McGregor, one of the adult heirs, gave his consent that the land be sold.

In order for such a sale to vest the complete title to the property in the purchaser, the widow may file in the office of the judge of probate her written consent that her dower interest in the land be sold. § 271, Title 61, Code 1940. In the petition for the sale of the land which the appellant filed as administratrix, she prayed as follows: 'Wherefore your petitioner prays that she be authorized to sell said lands for cash for the purpose of making a division of said estate among said heirs, according to the statute for such cases, and that the court will ascertain the portion of the purchase price to be given Bessie Mussey McGregor, in lieu of her dower interest in said property; * * *.' This request by the widow that the court ascertain the portion of the purchase price to be awarded her in lieu of her dower interest in the property was tantamount to the filing of her written consent that her dower interest in the property be sold, as provided by § 271, Title 61, Code 1940. It is not otherwise contended. The petition filed by appellant, as administratrix, is much broader than that considered in Owen v. Slatter et al., 26 Ala. 547, 62 Am.Dec. 745.

On July 3, 1945, the probate court granted the petition for the sale of said land and the sale was made on August 22, 1945. It was confirmed on September 5, 1945. At the time the sale was confirmed no allowance was made out of the proceeds of the sale as a fair equivalent for the widow's dower interest in the land sold. However, on or about October 9, 1945, appellant, the widow of deceased, filed a petition in the probate court to have that court set aside her dower interest in the several parcels of land, including her portion of the proceeds received from the sale of Lots 8, 9 and 10, Block 154, in the City of Birmingham.

Such was the situation in the probate court on February 4, 1946, when the administration of the estate of Arthur S. McGregor, deceased, was removed to the Circuit Court of Jefferson County, sitting in equity. After removal the petition for assignment of dower was amended, and as amended in effect recited that an agreement had been reached between appellant, the widow of deceased, and all of the adult heirs at law as to their respective interests in the land of deceased, except as to the amount which the widow, appellant, was to receive from the proceeds of the sale of Lots 8, 9 and 10, Block 154, in the City of Birmingham, as a fair equivalent for her dower interest therein.

This disagreement was due to the fact that the heirs at law contended that the widow's share should not be more than one sixth of the purchase money as was provided by § 272, Title 61, Code 1940, which was in effect at the time of the death of the decedent and at the time the probate court ordered the sale of said land upon the petition previously field by the appellant; while on the other hand the widow, appellant, insisted that her share of the proceeds received from the sale of said land could be in an amount not in excess of one third of the purchase price, as provided by the 1945 amendment to § 272, Title 61, supra, which was enacted prior to the time the said land was sold, Act 447, approved July 6, 1945, General Acts 1945, page 686.

As before indicated, the trial court held that the law in effect at the time of the death of Arthur S. McGregor controlled, § 272, Title 61, Code 1940.

Upon the death of decedent the legal title to the land descended to the heirs at law 'subject to the payment of debts, charges against the estate, and the widow's dower.' § 1, Title 16, Code 1940.

Upon the death of her husband the appellant's dower interest was a life estate in one half of the property of which he died seised. §§ 40 and 41, Title 34, Code of 1940. The dower interest of a widow may be extracted from the estate when it can be assigned by metes and bounds on petition properly filed by the widow, heir or personal representative of the husband. § 51, Title 34, Code 1940. This method of extracting the dower interest of the widow from the estate is not affected by the act of July 6, 1945, supra. Another manner of extracting the widow's dower interest from the estate is where, in a proper case of sale, the widow signifies in writing her consent that her dower interest may be sold. §§ 244, 245, 246, 271, Title 61, Code 1940; Snedicor et al. v. Mobley, 47 Ala. 517. § 272, Title 61, Code 1940, in effect at the time of the death of decedent, provided how and to what extent the widow was to be compensated for the dower interest so sold. That section fixed the maximum amount which she could receive at one sixth of the purchase price of the land. The act of July 6, 1945, supra, in instances where it is applicable, operates to authorize an increase in the amount of money which the widow may receive from the sale of the dower interest. The result is the same between the widow and heirs at law as if the quantity of the dower interest of the widow had been increased. Her dower interest is made more valuable at the expense of the heirs at law. As was said in Upshaw et al. v. Upshaw et al., 180 Ala. 204, 60 So. 804, 805: 'For the purposes of homestead and dower the proceeds of the sale will be treated as the land itself.' See also Williamson & Wife v. Mason, 23 Ala. 488; Chaney's Heirs v. Chaney's Adm'r, 38 Ala. 35; McLeod et al. v. McLeod et al., 169 Ala. 654, 53 So. 834.

Although the said act of July 6, 1945, was passed prior to the time fixed for the court to award compensation to the widow for her dower interest, which was the date the sale of the land was confirmed by the court, nevertheless to apply the terms of the said act to an estate already in procees of administration would be to give to it a retroactive operation inasmuch as the rights of the widow and heirs at law in the land were fixed at the time of decedent's death.

The question is thus presented as to whether the said act of July 6, 1945, is to be given a retroactive effect so as to apply to an estate already in the process of administration.

We do not have to reach the question of legislative power, but rather whether it was the intent of the Legislature that the act of July 6, 1945, be retrospective. As was said in the case of New England Mortgage Security Co. v. Board of Revenue of Montgomery County, 81 Ala. 110, 1 So. 30,...