Matthews v. Matthews

43 So. 2d 131, 253 Ala. 116, 1949 Ala. LEXIS 204

• Court: Supreme Court of Alabama
• Decided: October 13, 1949
• Docket: 8 Div. 496.
• Status: Published

Opinions

BROWN, Justice.

This is the third appeal growing out of a claim of the complainant as the widow of M. B. Matthews, deceased, of homestead exemptions in lieu of homestead under § 662, Title 7, Code of 1940. Matthews et al. v. Matthews, 247 Ala. 472, 25 So.2d 259; Matthews et al. v. Matthews, 249 Ala. 611, 32 So.2d 514. This appeal is from the decree entered December 15, 1948, in the course of the administration of the estate of said M. B. Matthews, deceased.

The assignments of error challenge the soundness of said decree confirming the register’s report on reference which held:

“Upon consideration, the court is of the opinion that the complainant, Lillian Matthews, the widow of the deceased M. B. Matthews, should have the full title to the sum of $964.45, this amount having been previously determined by the decree of this court in this cause, as being the value of her deceased husband’s interest or equity of redemption in this land at the time of his death and it also having been heretofore determined by decree of this court in this proceeding that this was all the real estate, or interest, in real estate, that the said husband of Lillian- Matthews, the complainant, owned at his death, and that the area of the whole ‘Proctor place’ did not exceed 160 acres.”

The register’s report after full hearing concluded that the interest of said M. B. Matthews in what was referred to as the McClendon land was nil.

On the finding of the register’s report that said Matthews’ interest in the Proctor land did not exceed in area 160 acres nor two thousand dollars in value, confirmed by the decree appealed from, the said decree was free from error. Code of 1940, Title 7, §§ 661-662; Worthy v. Walton, 232 Ala. 317, 167 So. 799; Smith v. Albert, 247 Ala. 520, 25 So.2d 382; Childs et al. v. Julian et al., 241 Ala. 249, 2 So.2d 453.

We are not impressed with the appellant’s contention that the right of the complainant as the widow of M. B. Matthews to exemption of personal property was precluded by the decree of December 20th, 1943, in which the trial court observed, “Upon consideration of the pleadings, the court is of opinion that demurrers heretofore filed to the bill of complaint should have béen sustained to the different aspects to the bill, except that aspect in- which complainant prayed for the assignment of homestead exemption and dower in and to the property left by her deceased husband; and the cause is accordingly considered in respect to homestead rights and dower only.” 247 Ala. 474, 25 So.2d 260.

The effect of the decree was not to sustain the demurrer to any part of the bill and on the face of the decree the right to personal property exemptions was not considered nor adjudicated. The bill was single in its purpose and scope, — complainant was seeking to recover her interest in the estate of her deceased husband. Smith-Howard Gin Co. v. Ogletree, 251 Ala. 366, 37 So.2d 507.

There- is no error on the record.

Affirmed.

FOSTER, LAWSON and SIMPSON, JJ., concur.