Taylor v. Dew

• Decision Date: 13 October 1938
• Docket Number: 6 Div. 355.
• Citation: 184 So. 184,236 Ala. 624
• Parties: TAYLOR ET AL. v. DEW.
• Court: Alabama Supreme Court

184 So. 184

236 Ala. 624

TAYLOR ET AL. v. DEW.

6 Div. 355.

Supreme Court of Alabama

October 13, 1938

Rehearing Denied Nov. 10, 1938.

Appeal from Circuit Court, Jefferson County; J. Edgar Bowron, Judge.

Action in trespass by Warren Dew against Nora Taylor and Charley Bridges, and action of forcible entry and detainer by Warren Dew against Nora Taylor. From a judgment for plaintiff defendants appeal. Transferred from Court of Appeals.

Affirmed.

Horace C. Alford, of Birmingham, for appellants.

Hugh A Locke and Frank M. James, both of Birmingham, for appellee.

BOULDIN Justice.

Appellee Warren Dew, brought an action in trespass against appellants, Nora Taylor, and her son, Charley Bridges.

The property is described as: "House and lot located at 319 Short Street, Pratt City, Jefferson County, Alabama." Without dispute this property was owned and occupied by Pleas Hatcher as his homestead at the time of his death in 1895. Thereafter it was occupied by his widow, Patsy Hatcher, until her death in 1934.

About 1921, plaintiff married this widow and resided with her upon the property until her death. Plaintiff claims a possessory right in the property after her death by the curtesy on the theory that by proceedings in the Probate Court in 1926, this, with adjoining property, was set apart as a homestead to his wife, as the widow of Pleas Hatcher, and the title adjudicated to her in fee.

Defendant, Nora Taylor, was the daughter of Patsy Hatcher, later Patsy Dew. Coming from her home in West Virginia, she was with her mother during the latter's last sickness and at the time of her death.

Upon her mother's death a controversy arose between Nora and Warren Dew touching the title and right of possession to this property.

The evidence for plaintiff was to the effect that Nora took possession, assumed dominion over the property, held the keys to the premises, and excluded him from his possession as surviving husband.

Evidence for defendant is in conflict touching the entire exclusion of plaintiff from a joint occupancy. This issue was for the jury and calls for no further comment.

The theory of defendants, supported by evidence under plea in short by consent, is: That she is the sole descendant and heir of Pleas Hatcher, that at the time of his death in 1895, she was a minor, living with her father and mother on these premises; that, if this and the adjoining property, constituted his homestead at the time of his death, was all the land he owned, and was less in area and value than the homestead to which his widow and minor child were entitled under the law then in force, the property vested in them in fee as tenants in common; that if the adjoining property, on which other buildings had been erected for rental purposes, was not a part of his homestead, then the widow would take only a homestead interest for life in the property here in suit, and on the mother's death the husband took no life estate by the curtesy, and Nora was entitled to possession as heir at law of her father.

The trial court, in his oral charge, instructed the jury: "At the time of her death that property was vested in this woman, Patsy Dew, and that is by virtue of the proceedings that took place in the Probate Court." This instruction presents the controlling question in the case as presented in assignments of error and brief for appellants.

These probate proceedings proven by transcript of the records, were instituted in 1926 by petition of Nancy Hatcher Dew, signed by mark, and sworn to before a notary public.

The petition disclosed that she was the surviving widow of Pleasant Hatcher, who died in 1895; that he left no child or children, adults or minors; that he owned and occupied as his homestead, lots Nos. 11 and 19 in a designated survey; that this was all the real estate owned at the time of his death; that said property does not exceed in amount and value the exemption allowed by law by Acts of 1892-93, p. 138 (appearing as section 2071 of the Code of 1896) the law in force at the time of his death. The petition further averred administration was granted on the estate soon after decedent's death, which had never been settled, and no exemption had ever been set apart. The petition named collateral relatives as next of kin of decedent, and prayed for the appointment of commissioners to appraise the property as of the death of decedent, and set same apart to petitioner, and for all necessary orders and decrees to set the same apart as exempt to petitioner so as to vest the title in her as provided by law.

Appraisers were appointed. They filed their report disclosing an appraisal of the property at $500 as of the death of decedent, that the entire tract was less than one acre in area, and was all the property owned by decedent in Alabama at the time of his death.

The final decree discloses no exceptions filed to the report, that the next of kin had notice as required by law, that on evidence submitted the proceedings of the appraisers were regular and fair, that the exemption so set apart does not exceed in area and value the exemption allowed by law, and, thereupon, confirmed the report and set apart said property as exempt.

The Act of 1892, which became Section 2071 of the Code of 1896, read: "When the homestead set apart to the widow and minor child or children, or either, constitutes all the real estate owned in this state by the decedent at the time of his death, the title to such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not."

It was the settled construction of that statute that if the homestead of the decedent was less in area and value than the exemption allowed by law, to widow and minor children, and...