Ticer v. Holesapple
| Decision Date | 09 March 1933 |
| Docket Number | 8 Div. 448. |
| Citation | 146 So. 614,226 Ala. 271 |
| Court | Alabama Supreme Court |
| Parties | TICER v. HOLESAPPLE. |
Appeal from Circuit Court, Lauderdale County; J. Fred Johson, Judge.
Bill to enforce homestead rights by Mrs. R. L. Ticer against W. C Holesapple, as administrator of the estate of John A. Ticer deceased, and others. From a decree sustaining the demurrer of named respondent to the bill, complainant appeals.
Reversed and remanded.
R. M Sims and Merwin T. Koonce, both of Florence, for appellant.
Simpson & Simpson, of Florence, for appellee.
The bill was filed by Roxie Ticer, as widow of John A. Ticer, deceased, against the heirs at law of decedent and the administrator of his estate, praying:
(1) A removal of the administration into the equity court; (2) to have the equity of redemption in the lands of decedent sold, and proceeds decreed to complainant in lieu of a homestead, and reinvested for her benefit; (3) to declare the estate insolvent, and vest title to such homestead in her absolutely.
The appeal is from a decree sustaining a demurrer to the bill, with leave to amend; otherwise, the bill to stand dismissed.
The sufficiency of the bill for the removal of the administration into the court of equity is not challenged, and an order of removal was duly entered.
Demurrers to the bill as a whole were improperly sustained for this reason.
The primary purpose of the bill is to effectuate the widow's homestead rights under Code, § 7919.
The bill discloses that the decedent owned, at the time of his death, two tracts of land. One, the tract occupied as a homestead, contained 428 acres, and was of the aggregate value of $1,600. The other, shown by the record to contain 145 acres, was of the value of $700. These are the values alleged to have been fixed by the appraisers appointed in the probate court, and stated in the bill as the true values.
The bill then alleges that at the time of decedent's death, February, 1932, the whole of said real estate was and still is encumbered by a mortgage to the Federal Land Bank of New Orleans, the amount of such mortgage indebtedness being approximately $1,700.
The bill prays for a sale of the equity of redemption in the entire property, a sale subject to the Federal Land Bank mortgage, and that the proceeds, not exceeding $2,000, be set apart as the widow's homestead exemption and reinvested.
The theory of appellee seems to be that the bill discloses decedent owned and occupied a homestead, that nothing prevents the laying off of 160 acres of that tract as the widow's homestead, and this is the measure of her homestead right.
It is well settled that, ordinarily, the homestead of the decedent becomes the homestead to which his widow is entitled. In no case can it exceed 160 acres in area, nor $2,000 in value. The value, however, is determined by the interest of decedent in the same at the time of his death. If encumbered, the amount of such incumbrance is to be deducted in appraising the value of the homestead.
Under the averments of the present bill, the incumbrance exceeds the value of any 160 acres to be laid off from the homestead tract, in fact exceeds the value of the entire 428-acre tract.
This situation was considered in Steiner Bros. v McDaniel, 110 Ala. 409, 20 So. 54. It was then held that, if the homestead was encumbered to its full value, so that no real and substantial provision is made for the widow by setting it apart as a homestead, the beneficent purpose of our homestead statute demands that a homestead be awarded in...
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Howell v. Ward
...the removal of the administration of the estate into a court of equity not being challenged--were improperly sustained. Ticer v. Holesapple, 226 Ala. 271, 146 So. 614. If mortgage to secure the moneys of the ward was as required by statute and the court's order, valid, it was superior to th......
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Childs v. Julian, 8 Div. 9.
...assets and securities to save her homestead right. Code 1923, §§ 7919, 7943, Code 1940, Tit. 7, §§ 662, 688; Ticer v. Holesapple, 226 Ala. 271, 146 So. 614, 615. The mortgage covered the homestead and non-homestead lands, and the mortgagor's widow was entitled to have equity of redemption i......
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Roy v. Roy
...laches of the widow or the guardian for the minor children can operate as a waiver or loss of the right. See, also, Ticer v. Holesapple, 226 Ala. 271, 146 So. 614, where this concluding clause of the statute is quoted emphasized. The bill shows that the homestead exemption was here claimed,......
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Price v. Price, 75--31
...(1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937); Gray v. Weatherford, 227 Ala. 324, 149 So. 819 (1933); Ticer v. Holesapple, 226 Ala. 271, 146 So. 614 (1933). The Supreme Court of Nebraska has also held that the value at the date of the decedent's death governs, relying upon what......