This is an appeal from a decree granting relief to complainants, and dismissing respondents' cross-bill.
Mrs. Hattie Cook, one of the complainants, was the widow of J. L. Prescott who died in 1912. They had one child, Mary, now Mrs. Mary King, who is the other complainant. Mr. Prescott left surviving him seven grown children of a prior marriage and eight grandchildren who were the children of a deceased son. All of the descendants of Mr. Prescott by his first marriage were respondents in the court below and some of them are appellants in
Mr. Prescott's estate was administered in the Probate Court of Coffee County, Alabama; one hundred acres of his land being set apart to the widow, Mrs. Hattie Prescott (now Cook), and the then minor child, Mary Prescott (now King), for the period of the minority of the child and the life of the widow, and sixty acres of the lands were set apart to the widow as her dower. The balance of his lands were sold for the payment of debts and for distribution to the heirs at law and next of kin. The estate was solvent and was finally settled in 1914. The widow remarried one Bryan and they lived together about three years and in 1918 or 1919 the widow married one Cook and lived on the homestead lands until after Cook's death in 1940. She remained in the actual or constructive possession of the lands. The question of absolute vesting of the homestead is not here involved.
The bill of complaint was filed in November 1949 by Mrs. Cook, the widow, and her daughter, Mrs. Mary King, and sought a sale of the dower and homestead one hundred and sixty acres of land for division of the proceeds among the joint owners after first ascertaining and paying to the widow the value of her dower in the dower tract of land and withdrawing two thousand dollars of the proceeds of the sale of the homestead tract for reinvestment for the use of the widow.
The respondents filed a demurrer to the bill and after it was overruled, they made their answer a cross-bill charging the life tenant with waste. After hearing the testimony, the court entered a decree of sale, as prayed for in the bill, and dismissed the cross-bill.
The contentions presented by the brief of appellants are: (1) that the bill is without equity because the widow and life tenant and one of the remaindermen cannot join as complainants in a bill for the sale of land for division, where the homestead and dower are involved; (2) that the life tenant was guilty of waste; (3) that the widow or dowress has no interest in standing timber growing on the dower land; (4) that if the widow is entitled to have her dower interest ascertained it should be based on the value of the land and not on the land and timber.
This case is governed by the law in force at the time of the husband's death both as to the homestead rights, Haynes v. Haynes, 236 Ala. 331, 181 So. 757, and as to computation of dower, McGregor v. McGregor, 249 Ala. 75, 29 So.2d 561. The law applicable to the homestead exemption is section 4196 of the Code of 1907, section 661, Title 7, Code of 1940, prior to amendments, which states in part: "and it [the homestead] shall not be sold or partitioned by order of any court until the death of the widow and the youngest child is of age, except by the order of the circuit court in equity, for reinvestment, with the consent of the widow, in writing, if living."
This part of the section was construed to apply whether or not the estate was solvent. Matthews v. Goodenough, 206 Ala. 229, 89 So. 708. A position taken in the pleadings can operate as a written consent of a widow to the sale of her dower interest in a sale for division as required by section 2647, Code of 1907, section 271, Title 61, Code 1940. Boyles v. Wallace, 208 Ala. 213, 93 So. 908; McGregor v. McGregor, supra.
Appellants insist that the widow and one remainderman cannot maintain a bill for a sale for division of the homestead land and the dower land with the statutory value of the homestead to be withdrawn for reinvestment, and the value of the dower ascertained and allowed to the widow, over the protest of the other remaindermen. We agree that cotenancy is an indispensable element of compulsory partition. Cobb v. Frink, 200 Ala. 191, 75 So. 939; Street v. Watts, 202 Ala. 622, 81 So. 564; Mizell v. Walley, 253 Ala. 302, 44 So.2d 764.
Mrs. Cook is not a joint owner, but her daughter, Mrs. Mary King, is a joint owner with all the respondents. Mrs.
We think this gives equity to the bill, both as to the homestead lands and the dower lands. This Court said in Williams v. Anthony, 219 Ala. 98, 121 So. 89, 90:
Although the report of the Anthony case, supra, does not expressly show it, the original record reveals that the complainants were children of Caswell Williams, deceased, and all the respondents were his heirs except Sallie Williams who was his widow.
Equity courts have jurisdiction in sales for division, Title 47, section 186, and section 189, Code, reads as follows:
The Court considered this section (then Code 1907, section 5232) along with others in Sandlin v. Anders, 210 Ala. 396, 98 So. 299, 302, and concluded that their purpose was to settle all questions of title by whomsoever held in one suit in equity and states: "The proper parties include all persons claiming title to or incumbrances upon the lands or any part thereof, whether claiming through any of the tenants in common or otherwise."
We therefore hold that the homestead can be sold for reinvestment, the widow having consented as required by section 661, Title 7, Code 1940, section 4196, Code 1907, and likewise her dower interest can be sold at her request, the dower interest ascertained and the balance of the proceeds divided among the joint owners according
We now come to the charge in the cross-bill that the life tenant, Mrs. Cook, has committed waste by allowing the buildings and fences to deteriorate, by ceasing to cultivate the lands, and by permitting the place generally to be in a state of disrepair. At the time of Mr. Prescott's death in 1912, the farm house was in a good state of repair and was one of the better homes in the community. The farm was being cultivated, the tenant houses were livable and the fences in good condition. When the testimony was taken in 1952, the porch on the main house had fallen in, the barns and tenant houses had either disappeared or were not usable, the fences were down and most of the land had grown up in bushes, briers and trees. Mrs. Cook testified in effect that she had managed to keep the place in a reasonable state of repair and cultivation until the "Elba" flood in 1929; that the flood ruined the arable land and since then she had trouble renting to tenants and that she was not physically able to tend the land herself; that she could not derive sufficient income from it and that she could no longer live on it.
However, during all these years the timber was growing. One timber buyer testified that the timber on seventy-five of the one hundred and sixty acres was as good as any timber in Coffee County. The value of the one hundred and sixty acres was variously estimated from $10,000 to $17,500.
The rule as to waste by a life tenant was announced in Alexander v. Fisher, 7 Ala. 514, where the Court said: "* * * the general criterion by which to determine whether waste has been committed, is, to ascertain whether lasting damage has been done to the inheritance, or its value depreciated." This case was followed in Guest v. Guest, 234 Ala. 581, 176 So. 289. In each of these cases, timber had been cleared to furnish new lands for cultivation, but the principle remains the same.
We cannot hold that lasting damage has been done to the inheritance by this life tenant, or that its value has depreciated when in 1913 the place, with the houses and the land in a high state of cultivation, was worth slightly in excess of $2,000 and now its value, with poor buildings and no land in cultivation, has increased four or five fold.
We cannot agree with appellants' contention that Mrs. Cook's dower should be limited to the lands separate and apart from the timber growing thereon. Dower is defined in Code 1940, Title 34, section 40, as "an estate for the life of the widow in a certain portion of the following real estate of her husband" etc. Timber or growing trees on land are a part of the realty. Ray v. Hilman, 229 Ala. 424, 157 So. 676; Smythe Lumber Co. v. Austin. 162 Ala. 110, 49 So. 875. Where dower exists only as to realty, timber while standing on the land is part of the realty and the widow's dower attaches. 28 C.J.S., Dower, § 15, p. 81.
The opinion in McGregor v. McGregor, supra [249 Ala. 75, 29 So.2d 563.], quotes from Upshaw v. Upshaw, 180 Ala. 204, 60 So. 804, 805, as follows: "For the purposes of homestead and dower the proceeds of the sale [for partition] will be treated as the land itself."
In view of the above, we think the lower court held correctly in that part of the decree which reads:
The court erred in the decree of sale in holding that Mrs. Beatrice Prescott had a dower interest in the lands, and that John Sharpless had a life interest in the lands. These parties were the spouses of deceased remaindermen who had never been beneficially seized in possession of these lands sometime during coverture. Dower does not attach to estates in remainder or in reversion. Bell v. Killian, 256 Ala. 24, 56 So.2d 604; Tilley v. Letcher, 203 Ala. 277, 82 So. 527; Code 1940, Title 34, section 40.
The decree of the circuit court will be reversed and remanded for correction in the particulars pointed out and in all other respects it will be affirmed.
Reversed and remanded in part for correction in accordance with this opinion and affirmed in part.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.
The decree which was affirmed in part by this Court was a decree of sale of the homestead and dower lands of one of the complainants, Mrs. Hattie Cook. Among other things that decree provides that when the register reports the sale, "the court will * * * fix and ascertain the value of the homestead and dower interests of Mrs. Hattie Cook" etc.
We think appellant is asking us to decide something which is not before us. The fixing and ascertainment of the value of the dower is a matter which will be before the circuit court, in equity, after the sale has been made and confirmed and the proceeds paid into court. We make the following notations and cite these cases merely for the lower court's convenience. We quote from Beavers v. Smith, 11 Ala. 20, at page 33:
The application for rehearing is overruled.
LIVINGSTON, C. J., and LAWSON and STAKELY, JJ., concur.