Snell v. Roach

• Decision Date: 02 March 1907
• Citation: 150 Ala. 469,43 So. 189
• Parties: SNELL v. ROACH.
• Court: Alabama Supreme Court

43 So. 189

150 Ala. 469

SNELL v. ROACH.

Supreme Court of Alabama

March 2, 1907

Appeal from Circuit Court, Henry County; H. A. Pearce, Judge.

Action by Lucy A. Roach against James M. Snell. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The plaintiff in the ejectment suit, appellee here, was a daughter of Joel McLendon, the former owner of the land. She was more than 21 years of age when her father died, in 1863. The appellant is the assignee of W. A. McLendon, a minor son of Joel McLendon, and asserts an interest derived from said minor son, which is the interest deeded, on a division of the land between the minor son and daughter, to the son, after they reached their majority. It was shown that the estate of McLendon consisted of 160 acres of land, on which he resided at the time of his death as a homestead; that his estate was declared insolvent; and that there was a widow and two minor children, the interest of one of whom Snell got by purchase. It was attempted by the defendant to show that the land, at the time of the death of McLendon and at the time his estate was declared insolvent, was not worth exceeding $500. The court refused to permit this question to be asked. On cross-examination of the plaintiff, the defendant proposed to ask her if she had not had a conversation with her mother in reference to these lands at the home in Henry county in the year 1902, previous to her death the following year, and if "in that conversation you did not say to her that on account of her advanced years she ought to make some disposition of her land by will, and that it would be right to leave it to Gus and Mary," meaning W. A. McLendon and Mary Holland, the minor children at the time of the death of the father. The court sustained objections thereto. The other facts are sufficiently set out in the opinion.

W. C Oats and P. A. McDaniel, for appellant.

Espey &amp Farmer and W. O. Long, for appellee.

SIMPSON J.

This was a statutory action of ejectment, brought by the appellee against the appellant, for a one-fifth interest in the E. 1/2 of S.E. 1/4, section 26, township 7, range 27, in Henry county, formerly owned by the father of the plaintiff, Joel T. McLendon, who died in 1863, while occupying said land as his homestead. Said McLendon left a widow and five children two of whom were minors; the plaintiff (appellee) being one who was not a minor at the time of her father's death. The defendant showed that letters of administration were issued on the estate of said McLendon, and the estate declared insolvent June 11, 1866, the land in question being mentioned as 160 acres, valued at about $900.50, and the petition stating that one-half of it is exempt from sale, for the benefit of the widow and children, while the record of his settlement, at the time of insolvency, states that the estate owns 160 acres, which the administrator believes "the widow of said deceased will be entitled to as a homestead, for the family of said deceased." Defendant's witnesses also stated that said widow, Mary McLendon, lived on said 160 acres of land, claiming it as her own, paying taxes on it, and collecting rents of same, since 1865 or 1866, until her death on July 5, 1903. Defendant also introduced in evidence the will of said Mary McLendon devising said 160 acres (S. E. 1/4 of section 26, township 7, range 27) to her son W. A. McLendon and her daughter Mary E. Holland share and share alike. Said Mary Holland and a sister (Sarah) since deceased were the minors, who lived with their said mother. Deeds were then introduced showing that said W. A. McLendon and his said sister Mary H. Holland had partitioned the land; the east one-half of said quarter (the land sued for) being conveyed to said W. A. and he having conveyed the same to the appellant December 8, 1904. The plaintiff testified that for 25 years before her mother's death she lived 35 miles distant from her mother, that she visited her occasionally, and had never heard her mother assert any claim to the land.

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