Edmonds v. Cogsdill

SOMERVILLE, J.

-As amended, the bill of complaint was clearly multifarious. It denied any rights in appellants to share in the division' of. the land as tenants in common with the original parties, and. brought them in solely for the purpose of quieting or canceling their claim of title under the will of John Edmonds, and hence would have been subject to demurrer on the ground stated. — Brown v. Feaqin, 174 Ala. 438, 57 South. 20.

Appellants, however, waived that objection by not assigning it, and chose to contest the bill as one to quiet title or cancel a cloud. Such alone is its character as to them, and so must it be treated by the court.

Thus viewed, it is plainly deficient in not alleging that complainant is in possession of any of the. lands in question. This defect is pointed out by the sixth ground of demurrer, which should have been sustained.

The other grounds of demurrer to the amended bill are palpably without merit.

As the evidence shows without dispute that appellants have severally the actual possession of the homestead tract, which is fatal to complainant’s right to maintain this suit against them, we deem it unnecessary to discuss or determine in detail the other questions raised by the assignments of error further than to say that the allegations of the cross-bill are not sufficient to entitle cross-complainants to the relief sought, and the demfirrer to it was properly sustained.

Unquestionably, the testator was powerless to dispose of the exemptions, either real or personal, allowed by law to his widow, and hence his will — the muniment under which cross-complainants claim — was wholly void as an attempt to limit her estate in this homestead and in the personal property to a mere life estate. — Bell v. Bell, 84 Ala. 64, 4 South. 189.

Nor would the fact either that the widow actively participated in the probate of the will, or that she failed to dissent from it in -writing, avoid the operation of the statutes which vest the exempted property in her absolutely. — Bell v. Bell, 84 Ala. 64, 4 South. 189; Hubbard v. Russell, 73 Ala. 578.

With respect to personal property, it is to be observed, also, that the will exhibited gives to cross-complainants only so much of it as is not used by the widow during her lifetime; and the cross-bill shows that she used all of it, thus defeating, by the very terms of the will, the conditional remainder given to them.

For the error pointed out, the decrees of the chancery court will be reversed as to the bill of complaint, and will be affirmed as to- the cross-bill; and a decree will be here rendered sustaining the sixth ground of demurrer to the amended bill of complaint as last amended.

Reversed and rendered in part, and affirmed in part.

All concur, except Dowdell, C. J., not sitting.