McDuffie v. Morrisette

ANDERSON, J.

— The complainants, as heirs of Henry Morrisette, deceased, file this bill for the sale and Partition of certain lands owned by said Morrisette at the time of his death, to wit, August, 1890. The bill avers that the said Morrisette was solvent and that his •estate was never administered upon, and that his widoAv died in the year 1912, never having had the land in question set apart to her as a homestead.

The sole question presented by this appeal, under the insistence of appellants’ counsel, is whether or not the widow took a life estate only to the land or a fee.

Upon the death of the owner, the legal title to his real estate descends to his heirs at law, subject, however, to the homestead exemptions of the widow and minor children. This homestead right is determined by the law in force at the time of the death of the husband.

The homestead set apart to the widow, under section 2543 of the Code of 1886, when there is no ascertainment and decree of insolvency, vests in the widow no greater estate than for her life; the fee going to the heirs-at law. —O’Rear v. Jackson, 124 Ala. 298, 26 South. 944; O’Daniel v. Gaynor, 150 Ala. 205, 43 South. 205. As Henry Morrissett died in 1890, the Code of 1886 determined the estate to which the widow was entitled; and, as his estate was never declared insolvent, his said widow took only a life estate. Therefore his heirs, and not the heirs of his wife are the owners of the land, and the lower court erred in holding that the bill was without equity because filed by the heirs of Henry Morrissett instead of the heirs of his widow, and a decree is here rendered reversing the decree of the law and equity court and overruling said demurrer, and the cause is remanded.

Reversed, rendered, and remanded.

■ Dowdell, C. J., and Mayfield and de Graffenribd, JJ., concur.