Appeal from a decree overruling demurrer to a bill in equity, as amended.
The bill sought to sell the homestead of Henry Ganus, deceased, for division and sought an ascertainment of the widow's dower and homestead rights. The amendment to the bill alleged the fair value of the homestead to be $11,000. The bill does not state the acreage of the homestead, but describes it by government subdivisions as four contiguous forties which, without additional explanation, comprise 160 acres.
The bill alleges Henry Ganus died intestate; that there has been no administration of his estate and none contemplated; that he left no debts, and that the land cannot be equitably partitioned. It also alleges that Henry Ganus and his wife jointly owned a home in the State of Mississippi, where the wife resided for more than two years prior to the death of Henry Ganus.
The complainants are two brothers and the children of a third brother, now deceased, of Henry Ganus. The respondents are the widow of Henry Ganus and the children of his deceased sister.
The principal point of the demurrer is that the bill, as amended, affirmatively shows that the widow has homestead rights in the property, and under the present homestead statute, she takes a life estate in the entire parcel; and the complainants, being remaindermen only, cannot maintain the bill.
The trial court, in the decree overruling the demurrer, stated in part:
(There is nothing in the bill showing that the homestead consists of more than 160 acres).
This case is governed by the law in effect at the time of the husband's
The decision in this cause turns on the construction of the 1951 amendment to Tit. 7, § 661, Code 1940. See Act No. 911, Acts of Alabama 1951, p. 1558, listed in Tit. 7, Pocket Part, p. 125, which provides:
We are concerned with the second sentence of § 661. Appellee contends that the first sentence of the section applies where the husband dies intestate, and the second sentence only applies when he dies testate, having willed the homestead to the widow and minor children, if any, and since there is no will, the second sentence has no application in the instant case.
We cannot agree with this contention. We think the intent of the Legislature was to provide the widow and the minor children, if any, with a life estate in the homestead without limit as to value, in the absence of devise by will, so long as there were no debts, or they were paid, and so long as the area did not exceed 160 acres. We think it clear that such a construction was intended by the Legislature, the exception being, as it has long been, that the husband, by will, could devise that part of his property over and above the homestead exemption as he pleased.
Appellees further contend that our case of Mitchell v. Mitchell, 258 Ala. 572, 64 So.2d 104, supports his contention because we said in that case, quoting from appellees' brief, "* * * that the two purposes of the 1951 amendment were (1) To raise the value of the homestead to $6,000.00, and (2) To delete all provisions for the absolute vesting in the widow and minor children. If the statute vest the homestead without limit as to value in the absence of a will wouldn't it have been mentioned in Mitchell v. Mitchell." There is no merit in this contention. We still think the two major objectives in the existing statutes at that time were these enumerated in Mitchell v. Mitchell. Sections 663 and 697 of Tit. 7 had not been reenacted and amended when Mitchell v. Mitchell was decided, and they are not applicable in the instant case. As stated in that case, many sections of the Code relating to homestead exemptions were repealed and others were amended. One of the changes was to provide a homestead for the widow and minor children
Thus, the bill shows that decedent left a homestead and, for aught that appears from the bill, it does not exceed 160 acres in area, that there is a widow, and that those seeking to sell the homestead, or part of it, for division, are remaindermen. Cotenancy is an indispensable element of compulsory partition or a sale for division, and a remainderman cannot maintain a bill for sale for division against the life tenant. Compton v. Cook, 259 Ala. 256, 66 So.2d 176; Mizell v. Walley, 253 Ala. 302, 44 So.2d 764; Street v. Watts, 202 Ala. 622, 81 So. 564.
It, therefore, follows that appellees showed no right to maintain a bill seeking a sale for division of the homestead against the widow of Henry Ganus. The decree of the lower court is reversed, one is here rendered sustaining the demurrer to the bill, as amended, and the cause is remanded, and appellees are given twenty days from the receipt of notice of this decision by the circuit clerk to amend as they may be advised.
Reversed, rendered and remanded.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.
On Application for Rehearing
Appellee has favored us with a scholarly study of the homestead laws of Alabama in brief on application for rehearing and urges that our opinion as to the meaning of the second sentence of § 661, Tit. 7, Code 1940, as amended, is not sound. We are still of the opinion that the Legislature intended by that provision that the widow and minor children of a decedent should have a life interest in the homestead of a decedent without limit as to value, when the homestead did not exceed 160 acres in area and where there were no debts, or if there were debts or claims, they were satisfied from sources other than the homestead.
There is one new matter to which we feel that we should reply. Appellee contends that our holding in the instant case is contrary to the holding in Roberts v. Roberts, 263 Ala. 517, 83 So.2d 348, 349, and "can in no way be reconciled" with it. We think the distinction between the cases is found in the third paragraph of the opinion in the Roberts case which records that the estate consisted in part of "about 281 acres of farm lands in Houston County." Obviously, more than 160 acres were involved and the opinion shows that sections of the homestead statutes, other than § 661, were involved, discussed and applied. We are unable to see the conflict or the irreconcilability in the two cases.
The application is overruled.
LIVINGSTON, C. J., and LAWSON and COLEMAN, JJ., concur.