Talmadge's Adm'r v. Talmadge , 66 Ala. 199 ( 1880 )

SOMEBYILLE, J.

The constitution and statute laws of Alabama provide for the exemption from sale on execution, or other legal process, of a homestead, only for the use and benefit of “ any resident of this State.” — Const. 1875, Art. 10, § 1; Code of 1876, § 2820. Non-residents are excluded from this benefaction, by the most obvious rule of legal construction ; and, in the event of their decease before a change of residence or domicile from elsewhere to this State, their families are equally excluded from the privilege.—Auerbach v. Pritchett, 58 Ala. 451. If, therefore, the appellee’s husband, William Talmadge, was a non-resident of Alabama at the date of his decease, she is debarred from claiming the statutory right of exemption set up by her in this case.

There is no disputation about the fact, that he was a resident of the State of Illinois, prior to March, 1878, when he purchased the real estate in controversy, which is claimed to have been his homestead. It is clear that the deceased contemplated a removal to Alabama. His intention to change his domiciliary residence from Illinois to this State can not be doubted. But such intention alone, without the completed act, is not sufficient. If he died before the consummation of ■his purpose, his proximity to its attainment is immaterial. His old domicile in Illinois continued until a new one was .actually acquired facto et animo. — Story on Conflict of Laws, § 47; State v. Hallett, 8 Ala. 159; Glover v. Glover, 18 Ala. 367; Littlefield v. Brooks, 50 Maine, 475.

The facts of this case, as agreed on by counsel, and appearing in the bill of exceptions, show that the deceased was a non-resident of this State at the time of his death, and a resident of Illinois. The appellee herself evidently so regarded him. She there procured to be issued to herself letters of administration on his estate, and obtained an exemption of personal property allowed only to a widow residing in that State. Her domicile being determined by that of her husband, this claim by her is the most emphatic assertion of his status in this respect.—Harrison & Saunders v. Harrison, 20 Ala. 629.

The charge of the court below was not in accord with these views, and was, therefore, erroneous. Let the judgment of the Circuit Court be reversed, and let the case be remanded.