LIVINGSTON, Chief Justice.
This is an appeal from an order and judgment of the Probate Court of Jefferson County, Alabama, denying the petition filed by Elizabeth H. Geohegan, the widow of Leslie E. Geohegan, deceased, under the provisions of Sec. 662, Title 7, Code of Alabama 1940, for exemptions in lieu of homestead.
The case was submitted to the court below on an agreed statement of facts, which may be summarized as follows:
Leslie E. Geohegan, a resident of Birmingham, Alabama, died testate in Jefferson County, Alabama, on January 2, 1956. He left surviving him his widow and four daughters, all of whom were over twentyone years of age, and who together constitute all the heirs at law and distributees of his estate.
In due course, the last will and testament of said decedent was admitted to probate in the Probate Court of Jefferson County and letters testamentary thereon issued to the executrix named therein. The said executrix qualified as such, and proceeded with the execution of the will.
On March 11, 1957, while the administration of said estate was still pending in said probate court and before final distribution of the assets of the estate had been made, the widow filed her petition to have $6,000 in cash, out of the assets of the estate in the hands of the executrix, set aside to her as an exemption in lieu of homestead.
At the time of his death, said Leslie E. Geohegan owned no real estate, or interest therein, whatsoever. He had no homestead which was exempt to him from levy and sale under process, and had no other real estate, or interest therein, out of which an exempt homestead could be carved; nor did he own any real estate, or interest therein, which could be sold, and an allowance in lieu of homestead be set aside to the widow out of the proceeds of such sale.
The widow did not receive or obtain any benefit of a homestead exemption under Sec. 654, Title 7, Code 1940, nor had any homestead or exemption in lieu of homestead been set aside to the widow out of the assets of the estate.
All debts of the decedent had been paid in full, and the executrix had in her hands cash belonging to the estate in excess of the sum of $6,000.
The Probate Court of Jefferson County denied the widow's petition and she appealed.
Appellant relies on that portion of Sec. 662, Title 7, Code 1940, which reads as follows:
The appeal presents one question only: Can exemptions in lieu of homestead be carved out of personalty when the decedent died leaving no real estate nor interest in real estate?
It was said by Stone, J., in Miller v. Marx, 55 Ala. 322:
From its inception, homestead exemptions dealt specifically with real estate; its purpose was to provide the family with home and shelter free from creditors. These early exemption laws were construed, in the absence of legislative action, to exempt only land or real property, and then only when it was endowed with homestead characteristics, being of a set acreage and value and occupied as such. And when the decedent owned real property which did not meet the limitation required and could not be reduced within said limitation, or if the land was not occupied as a homestead, then no exemptions could be allowed to the widow or children, although the decedent had substantial real property. Miller v. Marx, supra. This is not the law now. It has been changed.
In Chamboredon v. Fayet, 176 Ala. 211, 57 So. 845, this Court held that under the statute exempting personal property in the amount of $1,000, such exemption could not be carved out of real property. See also Quicksey v. Hall, 260 Ala. 162, 69 So.2d 698. It was also said in Chamboredon v. Fayet, supra, in speaking to that portion of Sec. 4197, Code 1907 (now Sec. 662), which provides that "in no case, and under no circumstances, shall the widow and minor children, or either of them, be deprived of homestead or two thousand dollars in lieu thereof, * * *":
It is clear enough from the foregoing that a $1,000 personal property exemption (Sec. 665) allowed the widow or children is to be taken out of personal property only, and that the $6,000 in lieu of homestead is to be taken out of real property or from the proceeds of the sale of real property only. This is more clearly shown by a look at the wording of Sec. 662, which states how the $6,000 in lieu of homestead is to be obtained:
"* * * and if such decedent at the time of his death has no homestead exempt to him from levy and sale under process, and has no other real estate out of which an exempt homestead can be carved, the widow and minor children, or either of them, may, by petition in the probate court or by bill in equity, have the homestead or any other real estate owned by the decedent at the time of his death sold, and six thousand dollars of the purchase money therefor applied by the court in accordance with the provisions of section 687; provided such petition or bill in equity
The statute plainly says that the homestead or other real estate is to be sold to acquire the $6,000 and it makes no mention of having the personalty sold to obtain the $6,000. Also, Sec. 662 provides that the exemptioner is to proceed in accordance with Sec. 687 of the same title.
Sec. 687 of Title 7, is entitled "Sale of land for allotment of homestead; proof of application; order of sale," and provides:
Here again, there is no mention of personal property.
The construction insisted upon by appellant would make portions of Sec. 662 inconsistent and contrary to other parts of the same section, and also to other statutes governing homestead. How could an exemptioner acting under Sec. 662 sell stocks and securities, jewelry, and other items of personal property to obtain $6,000 and still stay within the wording of Sec. 687 which provides that the "homestead" must be sold, or be within the wording of Sec. 662, which states:
It is clear enough that the $6,000 in lieu of a homestead is to be derived from the sale of the homestead or other real estate owned by deceased.
We have read the cases cited by the appellant and are of the opinion that they in no way conflict with what has been said above. We, therefore, hold that the $6,000 allowed in lieu of homestead must be carved out of real property, and that it cannot be carved out of personal property of the decedent's estate. That was the holding of the court below, and the cause is due to be, and is, affirmed.
SIMPSON, GOODWYN and COLEMAN, JJ., concur.