Taylor v. Russell

• Decision Date: 16 February 1979
• Citation: 369 So.2d 537
• Parties: Florence TAYLOR et al. v. Elizabeth RUSSELL et al. 77-554.
• Court: Alabama Supreme Court

Page 537

369 So.2d 537

Florence TAYLOR et al. v. Elizabeth RUSSELL et al.

77-554.

Supreme Court of Alabama.

Feb. 16, 1979.

Rehearing Denied April 6, 1979.

Charles A. McGee, Fort Payne, for appellants.

Terry D. Gillis of Kellett & Gillis, Fort Payne, for appellees.

JONES, Justice.

This is an appeal by Defendants, the devisees of Millie Ballard Mitchell Berry, deceased, from a judgment declaring Plaintiffs/Appellees, heirs at law of Walter E. Mitchell, joint owners in fee of certain real property in DeKalb County, Alabama.

Walter E. Mitchell died on September 18, 1917, leaving no children; he was survived by his widow, Millie Ballard Mitchell. ¹ At the time of his death, Walter Mitchell owned 692/3 acres of land in DeKalb County, Alabama, on which he and his wife, Millie, had resided. On November 19, 1917, 62 days after her husband's death, Mrs. Mitchell filed a petition for homestead exemption with the Probate Court of DeKalb County. In the petition, she sought to have her deceased husband's land set apart to her in fee simple. The petition alleged that the property was all of the land owned by Walter Mitchell at his death and that this property did not exceed 160 acres nor $2,000 in value.

On the same day as the filing of the petition, the probate court entered an order appointing appraisers of the estate. In that order, the probate court found the averments of the petition to be true and assumed jurisdiction of the homestead proceeding, stating that 60 days had elapsed since the death of Walter Mitchell without any administration on his estate. A report by the duly-appointed commissioners (appraisers) was filed with the probate court, stating that Walter Mitchell, at his death, owned 692/3 acres of land valued at $1,900. There was no finding by the appraisers, nor an adjudication by the court, that such land was all of the land owned by Walter Mitchell at his death. The probate court, upon these facts, issued a decree setting apart the property to Mrs. Mitchell as a homestead for life.

In May, 1974, Mrs. Mitchell died testate, leaving this property to the Appellants in this case. In 1976, Appellees, claiming to be the heirs at law of Walter Mitchell and joint owners in fee of the property in question, instituted this action to quiet title in the property.

The trial Court rendered judgment for the Plaintiffs/Appellees, finding that the probate court never acquired jurisdiction over the homestead proceedings because Mrs. Mitchell's petition failed to allege the necessary jurisdictional fact that 60 days had passed since the death of Walter Mitchell without any administration of his estate. The trial Court ruled that the probate court's decree was therefore void. The trial Court further found that Mrs. Mitchell took only a life interest in the property and that, upon her death, the heirs of Walter Mitchell, as remaindermen, became the owners in fee simple of the property. The Court also ruled, as a matter of law, that Mrs. Mitchell could not enlarge her life interest in the property into a fee simple estate by adverse possession. ²

Acknowledging that they can benefit only if Mrs. Mitchell obtained a fee simple title to the property sometime during her life, Appellants, as her devisees, advance two theories by which they contend Mrs. Mitchell obtained such title. First, they claim that a fee simple title vested in Mrs. Mitchell through the homestead proceeding in probate court because: 1) The probate court specifically found, in its order appointing appraisers, that 60 days had passed from the decedent's death without administration of his estate; and this despite the fact that Mrs. Mitchell's petition failed to make this necessary jurisdictional allegation; 2) the probate court appointed appraisers to appraise All the real and personal property of Walter Mitchell; thus, the appraisal, as returned, necessarily included all the property belonging to Walter Mitchell at his death; and this despite the fact that the commissioners' report and the court's final decree made no such specific finding; and 3) the probate court specifically found that the property was less than 160 acres and that the value was less than $2,000.

The Appellants would have us conclude, then, based on the findings of the probate court (as to the lapse of the 60-day period and the size and value of the property) and on the assumption that the appraisers did as ordered (i. e., found and reported on all of the property belonging to the decedent), that the homestead statute existing at the time of the probate proceedings operated automatically (i. e., by operation of law) to vest a fee simple title in Mrs. Mitchell. ³

As their second and alternative argument in support of their contention that Mrs. Mitchell obtained a testamentary devisable fee, Appellants state: Assuming Mrs. Mitchell was not vested with a fee simple title by the probate proceeding, she obtained such title by adverse possession.

Appellees, on the other hand, contend that the failure of Mrs. Mitchell's petition to make necessary jurisdictional allegations cannot be cured by a finding of the probate court, citing Bank of Columbia v. McElroy, 231 Ala. 454, 165 So. 105 (1935). Therefore, Appellees contend, any finding or order of the probate court was void. Alternatively, Appellees assert: If the probate court did obtain jurisdiction in the homestead proceeding, it ruled properly in granting only a life estate.

In reply to Appellants' adverse possession argument, Appellees contend that, as a matter of law, Mrs. Mitchell could not acquire a fee by adverse possession against them as remaindermen.

We find it unnecessary to respond to the question whether the probate court obtained jurisdiction in the probate proceedings. Conceding the jurisdictional issue, we cannot escape the fact that the probate court made no judicial determination that the 692/3 acres was all of the real estate owned by the decedent as required under § 4198, Code of Alabama 1907, the statute which controlled vesting of a fee at that time. Nor can the law so assume from the fact that the commissioners were ordered "to appraise all" the decedent's property within the state.

Additionally, it was never determined by the probate court in the instant case whether the estate was insolvent. Under § 4198, Code of Alabama 1907, this was a prerequisite to the vesting of the fee simple of the homestead in a surviving widow. ⁴ Therefore, assuming jurisdiction was properly obtained, we hold the probate court was correct in setting aside a homestead for life, rather than vesting a fee in the widow.

Alternatively, if the probate court was without jurisdiction, any order or decree it issued was void, leaving Mrs. Mitchell only her right of quarantine. Hays v. Lemoine, 156 Ala. 465, 47 So. 97 (1908); Miller v. First National Bank, 194 Ala. 477, 69 So. 916 (1915). Consequently, because Mrs. Mitchell did not obtain a fee in the probate proceeding, her devisees can benefit only if she acquired title by adverse possession; and, as we shall see, the standard for such acquisition is the same whether the widow possessed the property under her quarantine right or under her right to a homestead exemption.

Generally, a homestead is a life estate in the widow. Bryant v. Perryman, 213 Ala. 561, 105 So. 561 (1925). In contrast, quarantine is not an estate in land only a right to use and occupy the dwelling house where the widow's deceased husband last lived and the land and buildings appurtenant thereto. Norton v. Norton, 94 Ala. 481, 10 So. 436 (1891); Jackson v. Bain, 74 Ala. 328 (1883). See, generally, Eugene Alston Ray, "Assignment of Dower in Alabama," 37 Ala. Lawyer 112 (1976). A widow, if entitled to dower, however, may hold possession to such property under her quarantine rights until her dower is assigned. Stiff v. Cobb, 126 Ala. 381, 28 So. 402 (1899); § 3824, Ala.Code 1907.

We find no distinction in the cases between a homestead life estate and possession under quarantine as to the standard of proof for adverse possession by a widow against her husband's heirs. It is generally held that possession by a widow of her deceased husband's property under dower, homestead, or quarantine right is not adverse to the husband's heirs. 3 Am.Jur.2d, Adverse Possession, ...