Nix v. McCoy
| Decision Date | 23 February 1967 |
| Docket Number | 2 Div. 490 |
| Citation | 195 So.2d 893,280 Ala. 516 |
| Parties | Susan NIX et al. v. Mary M. McCOY. |
| Court | Alabama Supreme Court |
J. Garrison Thompson, Selma, for appellants.
Gamble & Gamble, Selma, for appellee.
Appellants are the beneficiaries of a last will and testament of Charles D. McCoy, deceased, by which they were willed a remainder interest in some real property of said decedent, in fee simple, after the death of appellee, decedent's wife, to whom, along with Grace C. Lovingood, he willed a life estate in the real property here in question.
The will was duly probated in the probate court of Dallas County, wherein the real property is situated, and in due time the administration was settled and the executor discharged on November 22, 1963.
Thereafter, on May 1, 1964, appellee filed her original bill in the circuit court of Dallas County, in equity, in which she averred that her husband died leaving a house and lot, not exceeding in area 160 acres and in value $6,000.00, and that he left no other real estate; that said real estate was occupied by decedent as a homestead stead at the time of his death, which occurred on or about February 19, 1963; also, that decedent did not leave surviving him any children or descendants of deceased children.
It is averred that no appraisers or commissioners were appointed by the probate court to appraise the homestead of said decedent; and that said homestead was not set off and allotted to complainant-widow, and that she 'is entitled to have said homestead exempt and set apart in fee simple.'
Complainant prayed inter alia:
'That upon the hearing of the pleading and proof in this cause a decree be rendered appointing commissioners to appraise the homestead of said decedent, and that such further orders and decrees be made and entered by this Court as may be necessary to set apart said homestead to your Complainant and to vest title thereto in your Complainant as the widow of said decedent absolutely and in fee simple and free from the administration of the estate of said decedent and free from and not withstanding the provisions of the aforesaid last will and testament of said decedent.'
Appellants, acting through their guardian ad litem, filed a demurrer to the complaint as a whole and to a particular aspect. Also, without waiving the demurrers, appellants filed pleas to the complaint and also an answer thereto. The demurrers were overruled.
Grace Lovingood, a party respondent, filed an answer to the complaint and admitted all the allegations and consented for the trial court to enter a decree granting the relief prayed in the complaint. She does not appeal. Only the minor-respondents appeal from the final decree.
It appears there are no disputed facts. The proof shows that appellee was living with her husband, Charles D. McCoy, on the homestead (the property here involved) occupied by him at the time of his death.
The trial court appointed three commissioners to make a full inventory of the real property of decedent, describing the property and estimating the value thereof; and further to appraise the homestead of decedent occupied by him at the time of his death, and if practicable, allot and set apart said homestead to the widow, Mary M. McCoy, the complainant.
The commissioners reported the lot herein involved did not exceed one acre, was occupied by decedent, Charles D. McCoy, as a homestead at the time of his death, and was all the real estate owned by him when he died. They appraised the value at $4,500.00.
The trial court, after a hearing on the evidence, which is not in dispute, rendered a final decree ratifying and confirming the report of the commissioners and setting apart the lot here in question to complainant, free from administration and payment of debts, and vesting in her fee simple title thereto.
Appellants (the minors) appeal from this final decree and say in their brief, filed by their attorneys, that, 'The sole and only question involved is whether or not a widow waives her right to claim a homestead by allowing the administration of her husband's estate to be fully administered upon and closed in the Probate Court without taking any action to claim a homestead.' This question, so appellants say, is presented by Assignments of Error Nos. I, II, III, IV, V, VI, VII, VIII and IX, which are the only assignments argued.
Neither appellants nor appellee cite a decision of this court (or of any other court) which parallels the facts in the instant case nor have we found one, but there are several cases which contain judicial observations and statements of legal principles, which, when considered together, strongly tend to support the ruling of the trial court on demurrer in the case at issue, and also the final decree from which this appeal is taken. We will advert to some of the observations.
'The statute gives the probate court jurisdiction only in two instances for setting apart the homestead, to wit, by section 4224 Miles v. Lee et al., 180 Ala. 439, 444, 61 So. 915(2), 917.
We here note that a preceding section, Title 7, § 672, Code 1940, imposes upon the appraisers the duty to appraise the homestead of the decedent, occupied by him at the time of his death, and report the appraisement thereof, with a full and accurate description of the same; and, if it is a part of a tract of land exceeding 160 acres, they shall report that fact.
It is also provided in Title 7, § 674, Code of 1940, as amended, that if, for more than twenty days after grant of administration the appraisers shall fail to appraise the homestead, or to make the report in reference to the homestead 'hereinbefore required,' then, upon the written application of the widow, the probate court shall appoint three commissioners, who shall, as soon as practicable thereafter, not exceeding thirty days, 'appraise the homestead in the manner required of the appraisers * * *.' The probate court on a hearing may confirm or set aside the report, as the right may appear. See, ...
To continue reading
Request your trial
-
Mordecai v. Scott
...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 fro......
-
Hutchins v. Shepard
...aside to Mattie under the law as it existed at James' death. See: Mordecai v. Scott, 294 Ala. 626, 320 So.2d 642 (1975); Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967). At the time of James Hutchins' death in 1951, the operative statute in effect was Title 7, § 663, Code of Alabama 1940, ......
-
Hicks v. Huggins
...293 (1879). In other words, the rights of a widow under the homestead statutes are fixed by the death of her husband. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967). In the case at bar T. N. Huggins died in 1946 and § 663 was in effect at that time. Thus Mrs. Huggins's right to have her d......
-
Cater v. Coxwell
...value and acreage limits, and there were no minor children, the widow could claim a fee interest in the homestead. Nix v. McCoy, 280 Ala. 516, 195 So.2d 893 (1967). This right to obtain a fee was held to be personal and not to survive to her estate. Walker v. Hayes, 248 Ala. 492, 28 So.2d 4......