Thompson v. Miller , 204 Ala. 502 ( 1920 )

Appellee, as the widow of one James Miller, deceased, there being no children, filed a petition in the probate court under the provisions of section 2097 of the Code of 1896 and section 4224 of the Code of 1907; these two sections being identical.

The proof was without dispute that petitioner's husband died in June, 1899, residing at the time of his death upon the farm described in the petition, the lot in Gadsden not being in any manner connected therewith, and that this petition to set aside this property as exempt under the foregoing statute was filed more than 20 years from the date of the death of the husband, and that several years prior to the filing of the petition the petitioner had sold the land constituting the homestead, which deed appears in evidence.

The majority of the court, consisting of ANDERSON, C. J., McCLELLAN, SAYRE, THOMAS, and BROWN, JJ., are of the opinion, and so hold, that the widow is without interest in the land and therefore is not in position to institute such proceedings. The majority do not consider that the case of Tartt v. Negus,123 Ala. 301, 28 So. 713, relied upon by counsel for appellee, at all militates agaifst this conclusion. Upon this question Justices SOMERVILLE and GARDNER do not agree.

The proof also discloses that the lot in Gadsden was not connected with the homestead in any manner, and there is nothing in the foregoing statute or any of the decisions of this court construing the same (Headen v. Headen, 171 Ala. 521$ 54 So. 646; Jones v. Stokes, 179 Ala. 579, 60 So. 280; Fuller v. Am. Supply Co., 185 Ala. 512, 64 So. 549), which would authorize such a proceeding as to said lot as here attempted. The court therefore holds that the exceptions to the report of the commissioners were well taken and should have been sustained and the petition dismissed.

The decree will therefore be reversed, and one here rendered dismissing the petition.

Reversed and rendered.