Mordecai v. Scott

• Decision Date: 02 October 1975
• Citation: 294 Ala. 626,320 So.2d 642
• Parties: Mildred Doris MORDECAI and Charles E. Mordecai v. Mattie O. SCOTT. SC 1145.
• Court: Alabama Supreme Court

Page 642

320 So.2d 642

294 Ala. 626

Mildred Doris MORDECAI and Charles E. Mordecai v. Mattie O. SCOTT.

SC 1145.

Supreme Court of Alabama.

Oct. 2, 1975.

R. B. Jones, Birmingham, for appellants.

Church & Trussell, Pell City, for appellee.

HEFLIN, Chief Justice.

This case arose out of a dispute as to the interest in a homestead granted to a widow and an adult child through a homestead law proceeding. Appeal is taken from the holding of the trial court granting appellee Mattie O. Scott and appellant Mildred Doris Mordecai each an undivided one-half interest in the disputed property with a right to the widow-appellee Mattie O. Scott of exclusive possession of the property for her life.

Appellee Mattie O. Scott is the widow of J. H. Scott who died intestate in 1958 owning a homestead not exceeding 160 acres in area. Appellant Mildred Doris Mordecai is the daughter of the complainaint-appellee and the decedent and was over the age of 21 years at the time of decedent's death. Husband, Charles E. Mordecai, joins his wife as an appellant.

The trial court found that the homestead real estate was all of the real property that J. H. Scott owned in the State of Alabama and that it exceeded $6000.00 in value. The trial court further found that Scott's estate owned no debts.

Because the real property was valued at more than $6000,00, the appellants argue that appellee was entitled only to a life estate in the property as provided by Title 7, Section 661, Code of Alabama, 1940 (Recomplied 1958). It is apparent that the trial court construed the second sentence ¹ of Section 661 of Title 7 with Section 663 ² of the same title in reaching a different result from the contention of the appellants.

Under the facts of this case, the issue before this court is whether the trial court was correct in vesting an absolute fee simple interest in the widow and adult child, irrespective of the value of the property involved. This court holds that the trial court was correct in its decision.

Homestead has historically been a confused and confusing area of the law, which has presented difficulties to both the bench and bar. The most litigated aspect of homestead law has been the nature and value of the interest to be granted survivors under the Alabama statutes. The confusion surrounding this problem has been compounded because of the changes made in several of the statutes by the legislature in 1951 and 1953. In light of these changes, a review of the present state of the law of homestead pertinent to the rights of survivors seems appropriate before turning to the issue presented by this case. ³

Two principles must be kept in mind when determining the homestead rights of survivors: (1) Survivors receive no benefit unless the decedent owned real estate, Geohegan v. Geohegan, 272 Ala. 514, 133 So.2d 50 (1961); and (2) statutes in effect at the decedent's death control what estate the survivors will receive. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

In general, the homestead law provides to named survivors a homestead not exceeding 160 acres in area which is exempt from administration and the 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 proof 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 in Griffin v. Ayers, 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 see Cade 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.

Although the purpose of the homestead law is to secure the protection of the home to the survivors, it is not necessary that the widow and minor children actually occupy the homestead prior to decedent's death. See Hammond v. Shipp 292 Ala. 113, 119, 289 So.2d 802, 807 (1974); Thompson v. Bryant, 251 Ala. 566, 38 So.2d 590 (1949). The survivors need not be Alabama residents, Lucky v. Roberts, 211 Ala. 578, 100 So. 878 (1924), although the statute (Section 661) does require that the decedent reside in Alabama at the time of his death. Matthews v. Matthews, 249 Ala. 611, 32 So.2d 514 (1947).

If the decedent owned no homestead or if the homestead cannot be reduced to statutory value, the widow and minor children may receive an exemption in lieu of homestead in decedent's other lands. Title 7, Section 662, Code of Alabama, 1940 (Recompiled 1958). This same provision states that if decedent has no homestead exempt from levy and sale under process and if it is impossible to carve a homestead from the 'other real estate,' the survivors can receive $6,000.00 from the proceeds of the sale of decedent's real estate. See Geohegan v. Geohegan, 272 Ala. 514, 133 So.2d 50 (1961). If the homestead is devised, the devisee can clear the property of the homestead rights by paying $6,000.00 to the personal representative. Title 7, Section 689, Code of Alabama, 1940 (Recompiled 1958). Section 687 provides that the money received under both Sections 662 and 689 is to be spent to purchase another homestead or to be paid to the widow, or the guardian of minor children if there is no widow, for the use and support of widow and/or minor children 'upon such provisions, conditions or limitations as to the court shall seem proper in the premises.' If the devisee does not wish to clear the property of homestead rights, the homestead can be set aside to the widow and/or minor children as provided in Section 661. Cf. Jay v. Jay, 289 Ala. 513, 518, 268 So.2d 788, 792 (1972).

Neither the surviving husband ⁴ nor collateral heirs have rights under the homestead laws. See Title 7, Section 669, Code of Alabama, 1940 (Recompiled 1958); Little v. Simmons, 222 Ala. 206, 131 So. 561 (1930) (rights of husband); Harrod v. Farmer, 273 Ala. 298, 139 So.2d 115 (1962) (rights of collateral heirs). The homestead rights of minor children in property left by their mother are superior to the rights granted to the husband by Title 16, Section 12 of the Coce. See Barton v. Laundry, 202 Ala. 10, 79 So. 308 (1918).

When the homestead is not devised and there are no debts or the debts have been paid, the widow and minor children are allowed an exemption in the homestead without any value limitation under Section 661. See McCarver v. Womack, 285 Ala. 264, 231 So.2d 301 (1970); Tipton v. Tipton, 268 Ala. 497, 108 So.2d 348 (1959); Ganus v. Sullivan, 267 Ala. 16, 99 So.2d 204 (1957).

Section 663 provides that if the homestead set aside is all the real estate owned in this state by the decedent at the time of his death then title vests absolutely in the widow, minor and adult children and the descendants of deceased children. See Pryor v. Heard, 268 Ala. 310, 106 So.2d 171 (1958).

This section has been construed to allow absolute vesting where decedent owned cemetery lots, Sams v. Sams, 242 Ala. 240, 5 So.2d 774 (1942), but absolute vesting was denied where decedent owned mineral rights in lands other than the homestead. Locke v. Locke, 291 Ala. 344, 280 So.2d 773 (1973).

There is no question that the survivors' interest becomes a fee interest, regardless of devise, if the property set aside is all the property owned by the deceased in the state at the time of his death, the value is $6,000.00 or less and the area does not exceed 160 acres. Nathanson v. Key, 286 Ala. 486, 487, 242 So.2d 389, 391 (1971); Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967).

The case presently before this court presents a situation where (1) the property is all the real estate which decedent owned within the state at the time of his death, (2) it does not exceed the area limitation, (3) but does exceed $6,000.00 in value, (4) no debts are owned by decedent's estate and (5) there is no devise of the property. The court must determine whether, under these facts, a homestead can be set apart which vests absolutely in the widow and adult child regardless of its value.

The statutes pertinent to this issue are Sections 661, 663, 694 and 697 of Title 7, Code of Alabama, 1940 (Recompiled 1958). This court has previously stated that these sections are to be construed together. Simpson v. Simpson, 254 Ala. 648, 49 So.2d 314 (1950). At least three of these sections underwent extensive revision in 1951 and 1953. Prior to these revisions, the Code provided for a homestead exemption for the life of the widow and minority of the children of not exceeding $2,000.00 in value and 160 acres in area, which would vest absolutely if the estate was determined to be insolvent. Section 7918, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 661 of Title 7.). Further, the homestead woudl also vest absolutely in the widow and minor children as against other heirs of decedent after a judicial determination that it was all the property owned by decedent at his death and was not valued at more than $2,000.00 Section 7920, Code of Alabama, 1923 (In the 1940 Code this appeared in Section 663 of Title 7.); Taylor v. Dew, 236 Ala. 624, 184 So. 184 (1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937). Title was presumed absolute as against creditors until it was judicially determined not to be all of the real...