Dossey v. Pitman , 81 Ala. 381 ( 1886 )

STONE, C. J.

— In Turnipseed v. Fitzpatrick, 75 Ala. 297, we construed § 2061, sub-section 6, of the Code of 1867. We held it was necessary to a valid setting apart of a homestead to a widow or minor child, or to both, under that statute, that the commissioners appointed for the purpose should report their action to the court, and that judicial action should be taken upon it. In that case the commissioners had failed to report their proceedings to the court, and the court’s records and files failed to show that any selection or allotment had been made. The language of this court was, “We can not be permitted to surmise, from parol testimony, that a selection was practicable, or that the court might not have deemed the applicants entitled to the proceeds of the sale in lieu of the land itself, this being an alternative relief authorized by the statute, to be adjudged in a specified contingency, the non-existence of which can not be presumed, in the absence of record evidence positively affirming its truth.”

Malcolm G. Graham, the intestate in this case, died in June 1876, leaving a widow, but no minor child. The widow was appointed administratrix, and the estate was declared insolvent. It paid a very insignificant dividend to the creditors, and no question is raised on the regularity of the proceedings which resulted in the declaration of insolvency. The widow’s claim of homestead was and is governed by the provisions of the act “to regulate property exempted from sale for the payment of debts,” approved April 23, 1873, so far as the extent of her right is concerned.— Taylor v. Pettus, 52 Ala. 287 ; Taylor v. Taylor, 53 Ala. 135 ; Rottenberry v. Pipes, b. 447. The present proceedings setting aside homestead were not had until after the enactment and approval of the statute of February 9, 1877. As to the manner of asserting and contesting the right, the later statute governs. Clark v. Spencer, 75 Ala. 49. The statutory regulations which expressly bear on this case are §§ 2827 and 2841 of the Code of 1876.

The present is a statutory real action by the heir at law of Malcolm G. Graham, against the heirs of Mrs. Graham, who are in possession, claiming title under their deceased grand-BJother’s alleged homestead right.

It is objected against the validity of the alleged allotment of homestead — Eirst: That the record fails to show any selection made by the widow, and fails to show a selection made by the commissioners, on her presumed failure to act. The record does show that the appraisers, acting as commissioners, did allot, describe and appraise 160 acres of land as the widow’s homestead, valuing it at less than two thousand dollars, and that they made a sworn report of the allotment and valuation to the Probate Court. The record shows further, that the widow occupied it as a homestead until her death six years afterwards, and that such homestead was never afterwards treated as any part of the available estate, either by herself, or by her successors in the administration. Coming, as the question does, collaterally before us, with no exceptions filed by any one to the allotment, we will presume either that the widow made the selection, or that she failed to act and the commissioners selected for her.

A second objection urged is, that the record fails to show any ruling of the Probate Court, approving the allotment made by the commissioners. The court did order that it be received and recorded. No exceptions being filed to the - allowance of the claim, we think no further ruling was necessary. — -Code of 1876, § 2841; Jarrell v. Payne, 75 Ala. 577.

Affirmed.