Barber v. Williams

74 Ala. 331

• Court: Supreme Court of Alabama
• Decided: December 15, 1883
• Status: Published

Opinion

BRICKELL, O. J.

— 1. 'Until dower is assigned, the statute secures to the widow the right to retain, free from the payment of rent, possession of “ the dwelling-house where her husband most usually resided next before his death.” — Code of 1876, § 2238. The right may continue for an indefinite period, and during its continuance she can take the rents and profits, appropriating them to her own use. But, until dower is assigned, she has no specific interest or estate in the lands: the -right to dower is in its nature rather a right of action, and it is not assignable otherwise than by a release to the heir or terre-tenant, which operates by way of extinguishment, and not by way of conveyance.— Weaver v. Crenshaw, 6 Ala. 873; Shelton v. Carroll, 16 Ala. 148; Cook v. Webb, 18 Ala. 810; Wallace v. Hall, 19 Ala. 367; Saltmarsh v. Smith, 32 Ala. 404. Immediately on the death of the ancestor, lands not devised descend to the heir at law, who is entitled to possession, unless the descent is intercepted by the act of the personal representative, in the exercise of the authority over real estate which the statutes confer. While the widow retains possession of the dwelling-house, she can not be ousted by the heir; for it is his duty to cause dower to be assigned her, and until the assignment her statutory right of possession continues. — Shelton v. Carroll, supra. But, as she has not a fixed, determinate interest, or an estate in the lands, and as her alienation to a stranger, before dower is assigned, passes no estate or interest, the heir can successfully maintain ejectment, or the corresponding statutory action, against the alienee, or one entering under him, for the recovery of possession.- — Wallace v. Hall, supra.

2. There can be no doubt that, at and prior to the death of the ancestor, his occupancy had impressed the character of homestead upon the premises in controversy. The only law of force at his death, which conferred upon the widow surviving the right to remain in the occupancy of the premises as a homestead, was the constitution of 1868. There was no statute then in existence, declaratory of, or defining or enlarging the right. The construction of the constitution is, that it confers upon the widow the right to remain in the occupancy of the homestead of her deceased husband during her life, — a right it is contemplated will be enjoyed in common with the minor children of the marriage, during their minority; and that the right may be enjoyed, the homestead is exempt from administration, and from descent or devise,-during her life. If there be no widow, a like right is secured to the children, during their minority. Miller v. Marx, 55 Ala. 322. As is said in this case, the right of the widow, or of the minor children, is that of occupancy— it does not include aright to convey or incumber the homestead. Occupancy as a home, as a dwelling-place, is the fact which impresses upon land the character of a homestead, drawing it within the influence of constitutional or statutory provisions, exempting it from liability for the payment of debts, or from subjection to administration, or intercepting the descent to the heir. — McConnaughy v. Baxter, 55 Ala. 379; Boyle v. Shulman, 59 Ala. 566. If the ancestor, while in life, had abandoned the occupation of the premises as a dwelling-place, acquiring a homestead elsewhere, from them the exemption allowed by the constitution would have been withdrawn, and would have been extended to the new dwelling-place he acquired. The widow, not resting under disability, may, after the death of the husband, abandon the homestead', and acquire a new homestead elsewhere, precisely as he could have done while living.— Wright v. Dunning, 46 Ill. 275. How far her abandonment would affect the rights of the minor children, is not now the matter of consideration. The abandonment works a destruction of her privileges; and as she has no power of alienation, if she does alien it, like the alienation of her right of dower before assignment, the descent to the heir is not thereby interrupted, aud he may maintain ejectment against her alienee, or those entering under him.

The instruction requested was properly ref ued ; and as its refusal forms the only matter of the assignment of errors, the judgment must be affirmed.