Garland v. Bostick , 118 Ala. 209 ( 1897 )

HARALSON, J.

It is claimed by the guardian ad litem of the infant defendant, that the widow, Mrs. Garland, forfeited her right to the homestead, when, shortly after the death of her husband, she moved from and leased it temporarily to another. This contention has no foundation, unless it could be justified under that chapter of the Code of 1886, which begins with section 2507. But that chapter relates exclusively to “exemptions from levy and sale under process.”

In the case before us, the husband owned and resided on the town homestead in question, which was less in value than $2,000, and died leaving his widow in possession thereof. Such a case is governed, not by the chapter of the Code above referred to, but by the succeeding chapter, two, which relates to “homestead exemption in favor of widow and minor children.” Section 2543 of this last named chapter, provides for a homestead “in favor of such widow and minor child or children, or either, in any event, during the life of the widow, and the minority of the child or children, whichever may last terminate,” and provides further that “the rents and profits of such homestead, if there be a widow and no minor child, shall enure to her benefit during her life; or if there be a minor child or children, and no widow, then to the benefit of such child or children during minority,” etc.

In this latter class of exemptions it is Avell understood that in cases where the value of the personal property of a decedent, and the area and value of the homestead do not exceeed in value that allowed by law to the widow and minor children, there is no necessity for the AvidoAV or minors to laj^ claim thereto by having it set aside to her or them. The law interferes and attaches to such property as absolutely as if the particular property had been selected, set apart and exempted; and this would be the case whether there had been administration on the estate of the husband or father or not. — Jackson v. Wilson, 117 Ala. 432.

Moreover, the legislature by an act approved February 28th, 1889, (Acts 1888-89, p. 113), “For the protection of widows and minor children,” provided in substance, that when homestead exemption has been allotted to the AvidoAV and minor child or children, or either, they shall not be held to have abandoned or forfeited the same by removal therefrom. — Code, 1896, § 2101.

We discover no error in the ruling of the court, setting aside and declaring the exemption in favor of the widow, to the house and lot in the town of Scottsboro where the husband resided at the time of his death, and that the same had not been forfeited because the widow had rented and temporarily moved from it.

It is unnecessary to discuss the facts of the case, relied on by appellant, to shoiv that the court erred in setting aside the report of the commissioners in allowing the widow as part of the homestead the 80 acre farm in the country; and in not allowing the small tenement house in the town, as a part of the homestead exemption. Neither, under the facts disclosed, had any connection with the town 'homestead, in such sense as to make it a part thereof. The discussion of analogous facts and the decisions of this court in analogous cases, render it unnecessary to repeat the argument here.— Dicus v. Hall, 83 Ala. 159; Jaffrey v. McGough, 88 Ala. 648; Hodges v. Winston, 95 Ala. 514.

The decree of the Probate Court is affirmed in the main case, and on the cross-appeal by the guardian ad l it cm.

Affirmed.