O'Rear v. Jackson

• Decision Date: 21 December 1899
• Citation: 26 So. 944,124 Ala. 298
• Court: Alabama Supreme Court
• Parties: O'REAR v. JACKSON.

26 So. 944

124 Ala. 298

O'REAR v. JACKSON.

Supreme Court of Alabama

December 21, 1899

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by Bettie Jackson against W. O. O'Rear. Judgment for plaintiff, and defendant appeals. Affirmed.

W. C Oates and S. H. Dent, for appellant.

Gordon Macdonald, for appellee.

DOWDELL J.

This is a statutory action of ejectment, commenced by the appellee plaintiff in the court below, for the recovery of certain real estate described in the complaint. The plaintiff bases her right of recovery upon a title acquired by descent from her ancestor, one Charles Dugan. The case was tried upon an agreed statement of facts, which is set out in the record. It is shown by this agreed statement that Dugan, the ancestor died in possession of the land in controversy in June, 1889 leaving surviving him his widow, Martha Dugan, and, as his only heirs at law, Bettie Jackson, the plaintiff, and Lewis Jackson. The land was the homestead of Dugan at the time of his death, and neither of his children were minors. In May, 1896, the land was set apart to the widow, Martha Dugan, as her homestead exemption, by a regular proceeding had in the probate court of Montgomery county. In November, 1896, Martha Dugan sold and conveyed the land to the defendant, W. O. O'Rear, who went into possession under said sale. Subsequent to this conveyance, and before the commencement of this suit, Martha Dugan died.

Upon the death of the ancestor the legal title to the real estate descended to his heirs at law, subject, however, to the homestead exemption of the widow. This homestead right of the widow is determined by the law in force at the time of the death of the husband. Davis' Adm'rs v Davis, 63 Ala. 293; Skinner v. Chapman, 78 Ala. 376; Munchus v. Harris, 69 Ala. 506. It becomes material, then, to determine the extent, nature, and character of the homestead exemption of the widow at the time of the death of the husband, in June, 1889. It is to be observed that in this case there was no administration upon the estate of Charles Dugan, and consequently no ascertainment and decree of insolvency of his estate. The homestead set apart to the widow under section 2543 of the Code of 1886, when there is no ascertainment and decree of insolvency, vests in the widow no greater estate than for the life of the widow, the fee going to the heirs at law. Smith v. Boutwell, 101 Ala. 373, 13 So. 568. It is contended by counsel for appellant that the homestead exemption in the present case, set aside to the widow, was so set apart, under the act of February 12, 1885 (Sess. Acts 1884-85, p. 114), as amended by the act of February 28, 1887 (Acts 1886-87, p. 112), and that an absolute title to the land vested in the widow. This contention necessarily involves the assertion that the act of February 12, 1885, was in force at the time of the death of the husband, Charles Dugan, in June, 1889, and this must depend upon one of two propositions: (1) That the act itself was adopted into the Code of 1886; or (2), if not adopted into the Code, it must have been preserved by some act of the legislature at the session in which the Code of 1886 was adopted. All general statutes, except such as were passed at the session of the general assembly at which the Code was adopted, not contained in the codification, were repealed. The act of February 12, 1885, was not brought forward and adopted into the Code, and was, therefore, repealed, unless it was preserved by the amendatory act of February 28, 1887. This act was entitled "An act to amend section one of an act, 'To set apart to widows and minors the property exempt from administration and debts under the laws of Alabama without any administration thereon,' approved Feb. 12th, 1885." It will be observed that this act purports to amend only section 1 of the act of February 12, 1885. This section 1, as amended, was copied into the Code of 1886 under a marginal note on ...