Smith v. Boutwell

• Decision Date: 14 June 1893
• Citation: 13 So. 568,101 Ala. 373
• Parties: SMITH ET AL. v. BOUTWELL ET AL.
• Court: Alabama Supreme Court

13 So. 568

101 Ala. 373

SMITH ET AL. v. BOUTWELL ET AL.

Supreme Court of Alabama

June 14, 1893

Appeal from circuit court, Coffee county; J. M. Carmichael, Judge.

Ejectment by Calvin Boutwell and others against Jesse Smith and others. From a judgment for plaintiffs, defendants appeal. Reversed.

Roberts & Martin, for appellants.

J. D Gardner, for appellees.

COLEMAN J.

Plaintiffs heirs of John Boutwell, deceased, instituted the statutory action of ejectment against defendants, grantees and heirs of Martha Boutwell, who was the widow of John Boutwell. The suit was commenced after the death of Martha Boutwell. There is but one material question in the case. The lands in question were the homestead of John Boutwell at the time of his death who died February 15, 1887, leaving no minor children, and the entire tract did not exceed in area 160 acres, and was of less value than $2,000. There was no administration upon his estate. Under the statute in force at the time of his death (Acts 1884-85, p. 114) the widow, Martha Boutwell, filed her application to have her exemption set apart. The petition for this purpose seems to be regular, and the proceedings conformed to the statute. The lands in question were regularly set apart to her, and the allotment confirmed and approved by the court. The simple question is whether the widow took a fee in the land. It will be noticed that the right of the widow to the exemption vested, under the Acts of 1884-85, before the adoption of the Code of 1886. Section 2543, Code. Under the law as it was in force under the Code of 1876, (sections 2827, 2841,) and as now in force under section 2543 of the Code of 1886, an exemption of homestead set apart to the widow and minor child or either did not vest the fee in the widow or minor child unless the estate was insolvent; and we held it required a judicial ascertainment and declaration of insolvency before the fee passed. Acts 1884-85, p. 114, under which the widow took her estate, in section 2 has this provision: "Upon the confirmation and approval of such report [that of the commissioners] by the probate judge, all the title, rights, privileges, and immunities to such property shall vest in such widow, or such widow and minor child or children, or minor child or children, as completely and fully as if said estate had been regularly administered upon and declared insolvent." This act of the legislature was intended to and...