THOMPSON v. MILLER, 204 Ala. 502 (1920)

THOMPSON v. MILLER, 204 Ala. 502 (1920)
85 So. 689


7 Div. 41.Supreme Court of Alabama.
June 3, 1920.Rehearing Denied June 30, 1920.

Appeal from Probate Court, Etowah County; L. L. Herzberg, Judge.Page 503

Motley Motley, of Gadsden, for appellant.

The plea to the jurisdiction and exception No. 1 should have been sustained. 90 Ala. 446, 8 So. 65; 75 Ala. 546; 190 Ala. 423,67 So. 289; 176 Ala. 167, 57 So. 752; 168 Ala. 432,53 So. 196; 166 Ala. 86, 52 So. 328; 116 Ala. 119,22 So. 262; 193 Ala. 574, 69 So. 459. The second and third exceptions should have been sustained. 145 Ala. 581, 39 So. 819. The fourth exception should have been sustained. 64 Ala. 277, 38 Am. Rep. 6; 96 Ala. 336, 11 So. 218; 108 Ala. 420,19 So. 86. The sixth and seventh exceptions should have been sustained. 110 Ala. 518, 17 So. 933. The eighth and ninth exceptions should have been sustained. 118 Ala. 209, 23 So. 698; 107 Ala. 465, 18 So. 210, 54 Am. St. Rep. 110; section 2544, Code 1886.

Goodhue Brindley, of Gadsden, for appellee.

The proceeding was properly instituted and conducted under sections 4224 to 4228, Code 1907, inclusive. 171 Ala. 521,54 So. 646; 179 Ala. 579, 60 So. 280; 31 Cyc. 1165; 184 Ala. 360,63 So. 542; 182 Ala. 284, 62 So. 75; 69 Ala. 510;127 Ala. 301, 28 So. 713; 128 Ala. 588, 29 So. 609.


Appellee, as the widow of one James Miller, deceased, there being no children, filed a petition in the probate court under the provisions of section 2097 of the Code of 1896 and section 4224 of the Code of 1907; these two sections being identical.

The proof was without dispute that petitioner’s husband died in June, 1899, residing at the time of his death upon the farm described in the petition, the lot in Gadsden not being in any manner connected therewith, and that this petition to set aside this property as exempt under the foregoing statute was filed more than 20 years from the date of the death of the husband, and that several years prior to the filing of the petition the petitioner had sold the land constituting the homestead, which deed appears in evidence.

The majority of the court, consisting of ANDERSON, C. J., McCLELLAN, SAYRE, THOMAS, and BROWN, JJ., are of the opinion, and so hold, that the widow is without interest in the land and therefore is not in position to institute such proceedings. The majority do not consider that the case of Tartt v. Negus,123 Ala. 301, 28 So. 713, relied upon by counsel for appellee, at all militates agaifst this conclusion. Upon this question Justices SOMERVILLE and GARDNER do not agree.

The proof also discloses that the lot in Gadsden was not connected with the homestead in any manner, and there is nothing in the foregoing statute or any of the decisions of this court construing the same (Headen v. Headen, 171 Ala. 521$ 54 So. 646; Jones v. Stokes, 179 Ala. 579, 60 So. 280; Fuller v. Am. Supply Co., 185 Ala. 512, 64 So. 549), which would authorize such a proceeding as to said lot as here attempted. The court therefore holds that the exceptions to the report of the commissioners were well taken and should have been sustained and the petition dismissed.

The decree will therefore be reversed, and one here rendered dismissing the petition.

Reversed and rendered.

SOMERVILLE and GARDNER, JJ. (dissenting).

The statute authorizing this proceeding is practically the same now as it was at the time of the death of petitioner’s husband, and we entertain the view that as the widow, or her alienee, has been in possession of the property since the death of the husband, and the rights of no third persons have been affected, the lapse of time does not bar this proceeding. We are further of the opinion that the sale of the lands by the widow does not bar her of this proceeding, for she still has an interest in upholding the warranty of title in her deed. The reasoning ofPage 504
the court in Tartt v. Negus, supra, we think, tends to support our conclusion.

We are of the opinion that under the authorities of Headen v. Headen, 171 Ala. 521, 54 So. 646; Jones v. Stokes, 179 Ala. 579,60 So. 280; Fuller v. Am. Supply Co., 185 Ala. 512,64 So. 549, cited in the majority opinion, the petition should have been allowed as to the homestead, but the exception to so much of the commissioners’ report as set aside the lot in Gadsden should have been sustained, and that the decree in this respect only should have been reversed.