Bailes v. Daly , 146 Ala. 628 ( 1905 )

HARALSON, J.

The bill in this case was filed for partition of land set apart in 1898 as exempt to the widow of Thomas J. Bailes, who died in March 1884. He had been twice married, and the bill was filed by the children of the first marriage, a year after the death of the second wife, against the children of his second marriage, to- whom the widow, their mother, had conveyed the property after it had been set. apart to her. The bill avers that there had been no administration upon the estate of Thomas J.- Bailes, nor any judicial ascertainment of its insolvency.

Upon the death of the ancestor the legal title to the real estate descended to his heirs at law subject however to the homestead exemption of the widow. This homestead right of the widow is determined, by the law in force at the time of the death of the husband.” — O'Rear v. Jackson, 124 Ala. 298, 26 South. 944.

The statute conferring the exemption, in force at the time of the death of Thomas J. Bailes, was the act approved February 9, 1877 (Acts 1876-77, p. 32), which provided that the exemption should inure to the benefit of the widow only during her life, the fee going to the heirs at law unless it was judicially ascertained that the estate was insolvent, in which event it should vest, in her .absolutely. It is contended, however, for appellants, that the act approved February 12, 1885 (Acts 1884-85, p. 114), was by its terms made applicable to residents who died before its enactment, and that section 2 thereof provided that the title should vest in the widow “as if said estate had been regularly declared insolvent.”

The second section of the act of February 12, 1885, however, if that were important., was never adopted into the code of 1886 nor preserved by any act of legislation at the session of the general assembly at which the code was adopted. It was therefore repealed. — O'Rear v. Jackson, supra.

The question presented for review is, as raised by the demurrer and the motion to dismiss the bill: Had the Legislature the right to pass an act, subsequent to the death of a party under and by virtue of the provisions of wliicli his AvidoAV is granted homestead rights in the lands of her din-eased husband, AAdiich she did not have under the laAV as it existed at the time of her husband’s death?

The question has been ansAvered, it seems, in the case of Shamblin v. Hall, 123 Ala. 545, 26 South. 286 where it is said: “Prior to the act of February 12, 1885, tice AA’idoAA’ of the decedent took only a life estate in the homestead set apart to her, except in cases where by decree of the probate court the estate was ascertained aud declared insoNent, in AAdiich eArent the absolute title to the homestead Arested in the AvidoAV, or avícIoav and-minor children, or minor child or children as the case may be. Subject to these statutory provisions upon the death of the ancestor intestate, eo inxtanti, the legal title of the real estate descended to and vested in his heirs at laAv. Where the éstate Avas solvent, the absolute fee in the lands of the decedent descended to and vested in the heir, subject to the right to have set apart out of the same a homestead to the AvidoAV and minor children; the title to said homestead as to the AvidoAV being limited to her life, and as to the minor to the term of his minority: The title so descending to the heir became a vested right,and it- Avas not Avithin the poAver of the legislature by statutory enactment after the title had become Arested in the heir by descent, to divest it out of the heir and vest it in another. To do so Avould be to deprive the citizen of his property Avithout due process of Iuav.”

Our conclusion is, that Thomas J. Bailes, having died in March, 1884, after the adoption of the act of 1876-77, the absolute fee to the land in question, .descended to his heirs at law, subject to the right of the widow and minor children to have a homestead set apart to them, and that the title of the Avidow Avas limited to her life, and as to the minor children, to the term of their minority.

The case of DeArmon v. Whittaker, 99 Ala. 252 relied upon by counsel in the application for rehearing, was tried upon an agreed statement, of facts, as set out in the report of that case, in Avhich it Avas stated that the exemption Avas considered and passed on under the statute of 1884-5, p. 114. The question of the want of power in the Legislature by statute, to divest title was not discussed in that case, and as far as the opinion and report shows, was not presented to the court for consideration. However, in so far as said case, conflicts with the opinion herein, it will not be hereafter followed.

The demurrer to the bill was properly overruled, and the decree of the chancery court is. affirmed.

Affirmed.

All the Justices concur.