Roy v. Roy

• Decision Date: 21 January 1937
• Docket Number: 3 Div. 192
• Parties: ROY et al. v. ROY.
• Court: Alabama Supreme Court

172 So. 253

233 Ala. 440

ROY et al. v. ROY.

3 Div. 192

Supreme Court of Alabama

January 21, 1937

Appeal from Circuit Court, Autauga County; Arthur Glover, Judge.

Suit by Azla Roy against W.T. Roy and others for a declaration of the insolvency of the estate of Wesley Roy, deceased, and vesting of fee-simple title to a homestead set apart therefrom in complainant. From a decree overruling a demurrer to the bill respondents appeal.

Affirmed.

Guy Rice and Douglas Booth, both of Prattville, for appellants.

Holley Milner & Holley, of Wetumpka, for appellee.

GARDNER Justice.

Complainant is the widow of Wesley Roy who died in March, 1930, without direct descendants, and of whose estate, in the same month P.D. Roy, a brother, was appointed administrator. The only real estate belonging to decedent consisted of 160 acres of land upon which he and complainant resided, and an 1/11 interest in other real estate valued at $75.

The 160 acres was duly appraised and in 1935 was, by appropriate proceedings in the probate court, in which the estate is now being administered, set apart as a homestead to complainant. Both the homestead and the personalty (greatly less than $1,000 in value) were under mortgagee to Mamie Roy, sister of decedent. The mortgage seized the personalty to be applied on the payment of said mortgage, leaving a balance due thereon of $900, and the estate is alleged to be insolvent, with the further averment that, though demand was made to that end the administrator refuses to institute proceedings for a judicial determination of insolvency. The homestead was likewise under mortgage to said Mamie Roy, the amount alleged to be due thereon being the sum of $2,640. And on December 8, 1930, said mortgage was duly foreclosed under the power of sale, the mortgagee becoming the purchaser at and for the sum of $3,624, and that after deducting expenses of said foreclosure there remains a surplus of $924 over and above the mortgage debt, for which the mortgagee refuses to account, and as to which the administrator declines to require an accounting.

Complainant, therefore, seeks by this bill, first, a declaration of insolvency of the estate, and, second, as a consequence of insolvency that the fee-simple title to the homestead be vested absolutely in her--all to the end that the mortgagee of the homestead be made to account to complainant for the surplus of $924 in her hands.

The equity of the bill is well sustained by the authorities. McGowin v. McGowin, 232 Ala. 601, 169 So. 232; Hames v. Irwin, 214 Ala. 422, 108 So. 253; Ticer v. Holesapple, 226 Ala. 271, 146 So. 614; Evans v. Evans, 213 Ala. 265, 104 So. 515.

And the general equity of a bill of this character is not questioned by counsel for defendants. But they earnestly urge two objections to relief in this particular case. First, it is insisted complainant's claim of exemptions to the homestead came too late, for that she took no steps to have the same set apart until 1934, when the foreclosure of the mortgage was in 1930.

The cited cases (Cross v. Bank of Ensley, 205 Ala. 274, 87 So. 843; Motley v. Jones, 98 Ala. 443, 13 So. 782; Lasseter v. Deas, 9 Ala.App. 564, 63 So. 735; Jackson v. Wilson, 117 Ala. 432, 23 So. 521) have each been carefully examined, and are found inapplicable to the facts of the instant case. A discussion here of the points of differentiation would unduly extend this opinion, and serve no useful purpose. Suffice it to say, they do not militate against the conclusion here reached that the objection to the bill is not well taken.

The uniform holding of our court is that homestead laws are to be liberally construed to the end of advancing their beneficial objects (Cross v. Bank of Ensley, supra), and in Chamboredon v. Fayet, 176 Ala. 211, 57 So. 845, 847 this court referred to the concluding clause of what is now section 7919, Code 1923, to the effect that in no case, and under no circumstances "shall the widow and minor children, or either of them, be deprived of homestead or two thousand dollars in lieu thereof, if they or either of them apply therefor in manner as herein provided, before final distribution of the decedent's estate," with the concluding observation that short of the period fixed by said statute--that is, final distribution of the estate--no laches of the widow or the guardian for the minor children can operate as a waiver...