Faircloth v. Carroll , 137 Ala. 243 ( 1902 )

TYSON, J.

Section 2071 of the Code provides that “when the homestead set apart to the widow and minor child or children or either, constitutes all the real estate owned in this State by the decedent at the time of his death, the title to such homestead vests absolutely in them, whether there be administration on the estate of the decedent or not,” In Quinn v. Campbell, 126 Ala. 280, consonant with the previous rulings of this court, it was held, that under this .statute, it is not indispensable! for the widow and minors to lay claim to the homestead by having it set aside to them-“The law intervenes in such cases and attaches th right of exemption as absolutely as if the particular property had been selected, set apart and declared exempt.” — Brooks v. Johns, 119 Ala, 412; Garland v. Bostick, 118 Ala. 209; Jackson v. Wilson, 117 Ala, 432; Tartt v. Negus, 127 Ala. 301. In the case last cited, the right of the widow and minor child or children to sell the homestead which vested in them absolutely under the statute above quoted was distinctly recognized. And in Gist v. Lucas, 122 Ala. 555, where the widow and minor children acquired the absolute title to the homestead by reason of the insolvency of the former husband’s estate, it was held that she could abandon it as her homestead, and thereby subject her interest in it to levy and sale under execution. It was there said: “The absolute title to the homestead was vested in appellant and her minor children as tenants in common.” So here, under the facts alleged in the bill the fee simple title to the homestead vested in the respondent and her minor children. And the: conveyance to the complainants, by one of the children, who owned an undivided one-third absolute interest in the land, after attaining her majority, vested in them that interest as tenant in common with the respondents. This being true, they are entitled to maintain this bill. The case of Smally v. Chisenhall, 18 So. Rep. 739, relied upon by appellees as supporting the decree dismissing the bill for want of equity is distinguishable from the one in band. Tn that case, the report in full of which only appears in the reporter (108 Ala. 683), the order of the probate court in setting aside the homestead only included the widow, and confessedly excluded the complainant who sought by her bill a partition of the homestead as against the widow. Besides it appears that she had attained' her majority before her father’s estate was declared insolvent and was, therefore, not a miuor when the fee to the homestead vested under the statute. Her failure to establish any right, title or interest in the land was a sufficient reason for dismissing her bill.

The decree dismissing the bill, on motion, for want of equity must be reversed and a decree will be here entered overruling the motion.

Reversed and rendered.