This is an appeal from a decree overruling the demurrer of appellants (next of kin) to the petition of appellee (as widow) to set aside as her homestead land of her deceased husband in fee simple without limit as to value.
Rufus Farmer, a resident of Montgomery County, died intestate October 21, 1956. Gertrude M. Farmer, his widow, was duly appointed administratrix of the estate by decree of the Probate Court of the County. Thereafter, upon petition of the administratrix, administration of the estate was removed from the Probate Court to the Circuit Court, In Equity. After removal, appellee filed her petition to set aside homestead to her.
The petition alleges that at the time of his death decedent owned and occupied as his homestead the tract of land described in the petition being less in area than 160 acres (approximately 5 acres) and constituting all of the real estate owned by decedent at the time of his death. The petition further alleges that decedent left no children or descendants of deceased children and was not survived by either parent, and his sole and only heirs at law and next of kin are his widow, the petitioner-appellee, and two sisters, the respondents and appellants. It is further alleged that petitioner, after exhausting other assets, paid out of her own funds the remaining indebtedness owing by decedent at the time of his death, and that there are no outstanding debts owing by decedent. The prayer of the petition is that notice issue to appellants as heirs at law of decedent, and that on the hearing of the cause the court will judicially determine that the real estate
The proposition appellants advance as the single question involved is: "Does the homestead of a childless, Alabama resident, dying intestate after September 19, 1953, vest in the widow absolutely, in fee simple, if it does not exceed 160 acres in size and if all debts of the estate are paid, even though said homestead exceeds the sum of $6,000.00 in value?" Appellants say that under the law of this State it does not, but that the widow may have only a life estate. Appellee contends that the widow is entitled to the property in fee by virtue of §§ 661 and 663, Title 7 of the Code as amended.
The effect of § 661 as last amended was to increase the value of the homestead from two thousand to six thousand dollars, to delete the provision for absolute vesting of title of the homestead in the widow and minor children where the estate is insolvent, and to add the following sentence:
Section 663, Title 7 of the 1940 Code was repealed by the Act of 1951, but was amended and reenacted in 1953 (Acts 1953, p. 1128). That statute now reads:
Appellants' contention is that the above quoted provision of § 661 did no more than grant a life estate in the widow and could not be made the basis for a fee simple
With this contention we cannot agree. Nor is it in any wise sustained by the authorities cited. In the first place, it concentrates upon the widow and makes no mention of minor children. Whatever right or title is vested is, by the terms of the statute, vested in "the widow and minor children" or "the widow or minor children". If "absolute vesting was abolished" as to the widow, it was likewise abolished as to minor children. In the second place the statement made by us in the Mitchell case, to the effect that one of the changes sought to be made by the legislature in amending the statutes relating to homestead exemptions was "to delete all provisions for the absolute vesting of title in a homestead in the widow and minor children", is mistakenly lifted out of context and made to refer directly to the amended version of § 661. In the Mitchell case we were dealing primarily with § 697 as amended by the 1951 Act. We said: "But the 1951 amendatory act, supra, does not affect § 697, Title 7, Code 1940, alone but repeals some sections of the Code relating to homestead exemptions and amends a number of other sections". One section so amended was § 661, in that feature which provided for absolute vesting in the minor children of the homestead where the estate was insolvent. Section 663 had been repealed and had not then been reenacted. Later in the opinion is the statement with reference to deletion of provisions for absolute vesting in the widow and minor children. It is significant that in the opinion the word "minor" is italicized. The opinion then proceeds to the conclusion that the real purpose of total amendment of these homestead laws was to provide for vesting of absolute title in the adult children along with the minor children. The subsequent reenactment and amendment of § 663, we think, fortifies this interpretation of the amended statutes in the Mitchell case, for by the amendment of said § 663, the legislature specifically provided for absolute vesting of the homestead "in the widow, the children (minors and adults) and the descendents of deceased children". It is significant that in reenacting § 663 the reference to absolute vesting of the homestead "as against other heirs" was eliminated.
There are some expressions in our recent decisions especially Ganus v. Sullivan, supra, and Tipton v. Tipton, 268 Ala. 497, 108 So.2d 348 which appellants regard as declarations that the widow may take only life estate in a homestead exceeding in value $6,000.00. In each of these cases we said that under § 661, as amended, a homestead without limit as to value vested in the widow and minor children for the life of the widow or minority of the children. In neither case was absolute title involved. In no case does § 661, standing alone, provide anything more than a homestead for life. It is, and has been, necessary to resort to other sections in the homestead law to have vested the absolute title in either the widow or children. Presently it is § 663 that provides "when all real estate of decedent set apart as homestead, title vests absolutely". In the above two cases § 663 was not considered or in anywise applied.
We have examined with care other cases cited and relied upon by appellant. It would serve no useful purpose to distinguish each of them separately from the case at bar. The distinguishing features in all of these clearly appear.
While not applicable to the case at bar (the appeal from the decree overruling demurrer to the bill having been taken prior to September 15, 1961), we think it might be helpful to the bench and bar to call attention to Act No. 72, passed at the recent special session of the legislature and approved by the Governor on the above date, abolishing appeals from interlocutory decrees on demurrer to bills in equity and cross-bills.
In view of the conclusions herein reached and stated, it results as our judgment that the decree appealed from is due to be affirmed. So ordered.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.