McGregor v. McGregor

29 So. 2d 561, 249 Ala. 75, 1947 Ala. LEXIS 289

• Court: Supreme Court of Alabama
• Decided: February 13, 1947
• Docket: 6 Div. 504.
• Status: Published

Opinions

LAWSON, Justice.

. '§ 272, Title 61, Code of 1940, prior to amendment read as follows: “When the sale is confirmed, the court, on the application of the widow, must make an order that a fair equivalent for the dower interest be paid to her by the personal representative, when the purchase money is collected, the value of such interest to be ascertained by "proof, having regard to the age and health of the widow, but in no case to exceed one-sixth of the purchase money.” (Emphasis supplied.) ■

By an act approved July 6, 1945, said § 272, Title 61, supra, was amended to the extent that the maximum amount which could be allowed a widow as a fair equivalent for her dower interest was fixed at one third of the purchase money. Act Nó. 447, approved July 6, 1945, General Acts 1945, page 686. § 272, Title 61, Code 1940, was in no other way affected by the •said 1945 amendment thereto.

The question presented by this appeal is which lav/ governs the computation of the amount allowable to a widow out of the proceeds of the sale of land which belonged to her husband as a fair equivalent for her dower interest, a statute as it read at the tine of the death of the husband, § 272, Title 61, Code 1940, or as amended subsequent to his death but prior to the date on which the s^.le of the land was confirmed, Act No. 447, approved July 6, 1945, General Acts 1945, page 686.

The trial court held the law in force at the time of the husband’s death fixed “the limit of the percentage of the purchase price allowable for the dower interest so sold,” and accordingly ordered that one sixth of the purchase price be paid to the widow, appellant, as the fair equivalent o.f her dower interest. Hence this appeal by the widow.

Arthur S. McGregor, husband of appellant, died intestate on December 12, 1943. At the time- of his death he was a resident of Jefferson County. There were no surviving children. In addition to the widow, Bessie Mussey McGregor, he was survived by several brothers and sisters and by children of a deceased brother or sister.

On December 30, 1943, the Probate Court of Jefferson County granted letters of administration to the appellant, the widow-The estate was solvent and .included, among other items of property, three parcels of real estate, but no homestead. The widow, appellant, had no separate estate.

When lands of an estate cannot equitably be divided among the heirs or devisees, it may be sold by order of the probate court having - jurisdiction of the estate, when application for such sale is made in writing by the executor or administrator, and when an adult heir or devisee- files written consent that such sale be had. §§ 245, 246, Title 61, Code 1940.

In the course of the administration in the probate court, the appellant, as administratrix, filed a petition on, to wit, May 28, 1945, for the sale.of one parcej of the real estate, to wit, Lots 8, 9 and 10 in Block 154, Birmingham, Alabama. This petition- was filed under §§ 245, 246, Title 61, supra, and alleged that the land could not equitably be divided or partitioned among the heirs or devisees. Albon V. McGregor, one of the adult heirs, gave his consent that the land be sold.

Jn order for such a sale to vest the complete title to the property in the purchaser, the widow may file in the office of the judge of probate her written consent that her dower interest in the land be sold. § 271, Title 61, Code 1940. In the petition for the sale of the land which the appellant filed as administratrix, she prayed as follows: “Wherefore your petitioner prays that she be authorized to sell said lands ■ for cash for the purpose of making a division of said estate among said heirs, according to the statute for such cases, and that the court will ascertain the portion of the purchase price to be given Bessie Mussey McGregor, in lieu of her dower interest in said property; * * This request by the widow that the court ascertain the portion of the purchase price to be awarded her in lieu of her dower interest in the property was tantamount to the filing of her written consent that her dower interest in the property be sold, as provided by § 271, Title 61, Code 1940. It is not otherwise contended. The petition filed by appellant, as administratrix, is much broader than that considered in Owen v. Slatter et al., 26 Ala. 547, 62 Am.Dec. 745.

On July 3, 1945, the probate court granted the petition for the sale of said land and the sale was made on August 22, 1945. It was confirmed on September 5, 1945. At the time the sale was confirmed no allowance was made out of the proceeds of the sale as a fair equivalent for the widow’s dower interest in the land sold. However, on or about October 9, 1945, appellant, the widow of deceased, filed a petition in the probate court to have that court set aside her dower interest in the several parcels of land, including her portion of the proceeds received from the sale of Lots 8, 9 and 10, Block 154, in the City of Birmingham.

Such was the situation in the probate court on February 4, 1946, when the administration of the estate of Arthur S. McGregor, deceased, was removed to the Circuit Court of Jefferson County, sitting in equity. After removal the petition for assignment of dower was amended, and as amended in effect recited that an agreement had been reached between appellant, the widow of deceased, and all of the adult heirs at law as to their respective interests in the land of deceased, except ' as to the amount which the widow, appellant, was to receive from the proceeds of the sale of Lots 8, 9 and 10, Block 154, in the City of Birmingham, as a fair equivalent for her dower interest therein.

This disagreement was due to the fact that the heirs at law contended that the widow’s share should not be more than one sixth of the purchase money as was provided by § 272,’ Title 61, Code 1940, which was in effect at the time of the death of the decedent and at the time the probate court ordered the sale of said land upon the petition previously filed by the appellant; while on the other hand the widow, appellant, insisted that her share. of the proceeds received from the sale of said land could be in an amount not in excess of one third of the purchase price, as provided by the 1945 amendment to § 272, Title 61, supra, which was enacted prior to the time the said land was sold; Act 447, approved July<6, 1945, General. Acts 1945, page 686.

As before indicated, the trial court held that the law in effect at the time of the death of Arthur S. McGregor controlled,' § 272, Title 61, Code 1940.

Upon the death of decedent the legal title to the land descended to the heirs at. law “subject to the payment of debts,, charges against the estate, and the widow’s . dower.” § 1, Title 16, Code 1940.

Upon the death of her husband the appellant’s dower interest was a life estate in one half of the property of which he died seised. §§ 40 and 41, Title 34, Code of 1940. The dower interest of a widow may be extracted from the estate when it can be assigned by metes and bounds on petition properly filed by the widow, heir or personal representative of the husband. § 51, Title 34, Code 1940. This method of extracting the dower interest of the widow from the estate is not affected by the act of July 6, 1945, supra. Another manner of extracting the widow’s dower interest from the estate is where, in a proper case of sale, the widow signifies in writing her consent that her dower interest may be sold. §§ 244, 245, 246, 271, Title 61, Code 1940; Snedicor et al. v. Mobley, 47 Ala. 517. § 272, Title 61, Code 1940, in effect at the time of the death of decedent, provided how and to what extent the widow was to be compensated for the dower interest so sold. That section fixed the maximum amount which she could receive at one sixth of the purchase price of the land. The act of July 6, 1945, supra, in 'instances where it is applicable, operates to authorize an increase in the amount of money which the widow may receive from the sale of the dower interest. The result is the same between the widow and heirs at law as if the quantity of the dower interest of the widow had been increased. Her dower interest is made more valuable at the expense of the heirs at law. As was-said in Upshaw et al. v. Upshaw et al., 180 Ala. 204, 60 So. 804, 805: “For the purposes of homestead and dower the proceeds of the sale will .be treated as the land itself.” See also Williamson & Wife v. Mason, 23 Ala. 488; Chaney’s Heirs v. Chaney’s Adm’r, 38 Ala. 35; McLeod et al. v. McLeod et al., 169 Ala. 654, 53 So. 834.

Although the said act of July 6, 1945, was passed prior to the time fixed for the court to award compensation to the widow for her dower interest, which was the date the sale of the land was confirmed by the court, nevertheless to apply the terms of the said act to an estate already in process of administration would be to give to it a retroactive operation inasmuch as the rights of the widow and heirs at law in the land were fixed at the time of decedent’s death.

The question is thus presented as to whether the said act of July 6, 1945, is to be given a retroactive effect so as to apply to an estate already in the process of administration.

We do not have to reach the question of legislative power, but rather whether it was the intent of the Legislature that the act of July 6, 1945, be retrospective. As was said in the case of New

England Mortgage Security Co. v. Board of Revenue of Montgomery County, 81 Ala. 110, 1 So. 30, 31: “On principles of general jurisprudence, a statute is not to have effect beyond the time of its enactment; and, to give it retroactive operation, there must be found therein clear and indisputable expressions of such legislative design. When the words of a statute can be construed as intended to be prospective only, they will not be so construed as to give retroactive effect. The courts will ‘always construe statutes as prospective, and not retrospective, unless constrained to the contrary course by the rigor of the phraseology.’ ” To like effect see Phillips v. Gray, Administrator, 1 Ala. 226; Boyce v. Holmes, 2 Ala. 54; Kidd v. Montague, 19 Ala. 619; Eskridge v. Ditmars, 51 Ala. 245; Ex parte Buckley, 53 Ala. 42; Warten v. Matthews, 80 Ala. 429; Barrington v. Barrington, 200 Ala. 315, 76 So. 81.

The legislative act here involved is not remedial in character, but changes the rights of the parties as they existed at the time of the death of the decedent.

There is nothing in the language of the said act of July 6, 1945, to indicate that it was intended to have a retroactive effect and we are of the opinion that a just application of the above rule of construction to- this act must deny any legislative intendment of a retrospective operation.

The rule is well established that a widow takes dower in her husband’s estate according to the laws-, in force at the time of the death of the husband. In Boyd v. Harrison, 36 Ala. 533, it was said: “The law existing at the husband’s , death must govern the question of the widow’s right to dower.” This rule was reaffirmed in Ware v. Owens, 42 Ala. 212, 94 Am.Dec. 672. In Robertson et al. v. Robertson et al., 191 Ala. 297, 68 So. 52, 53, decided in 1915, it was said: “The death of the intestate having occurred in 1896, the statutes 'touching the dower rights and prescribing methods fbr their assertion and effectuation in the Code of 1896 are applicable and govern. The statute of limitation in respect of the assignment of dower as it now prevails is not applicable. Code 1907, § 3837; Vaughn v. Vaughn, 180 Ala. 212, 60 So. 872.” The general rule is stated’ in 28 C.J.S.Dower § 5, p. 68 as follows: “The rule as applicable in all cases- seems to be that a widow takes dower in her husband’s estate, as against those whose rights to such estate originate at the same time as her right of dower, according to the laws in force at the death of the husband; but as against those who have specific rights against such estate prior to the death of the husband her right to dower will depend on the law in force at the time such rights originated.”

We thing the conclusion here reached is in accord with the well-established rule that the homestead rights of a widow are determined by the law in force at the time of the death of the. husband. Munchus v. Harris, 69 Ala. 506; Shamblin v. Hall et al., 123 Ala. 541, 26 So. 285; O’Rear v. Jackson, 124 Ala. 298, 26 So. 944; Bailes et al. v. Daly et al., 146 Ala. 628, 40 So. 420; Waters v. Gadsden-Alabama City Land Co., 182 Ala. 284, 62 So. 75; Haynes v. Haynes, 236 Ala. 331, 181 So. 757; Craig et al. v. Root, 247 Ala. 479, 25 So.2d 147. Likewise, it is a rule founded on a number of decisions of this court, that other exemptions for the benefit of a de~ cedeijt’s surviving widow and minor children as against other heirs and distributees are governed by the law which was in force at the time of the decedent’s death. Taylor, Administrator, v. Pettus, 52 Ala. 287; Taylor’s Adm’r v. Taylor’s Children, 53 Ala. 135; Davis’s Adm’rs v. Davis, 63 Ala. 293; Skinner v. Chapman, 78 Ala. 376.

The case of Steadman v. Steadman, 41 Ala. 473, cited by appellant, does hold that in computing the value of a widow’s statutory separate estate, on her application for dower in the lands of her deceased husband, the value of her property at the time of allotment of dower, and not at the death of her husband, should control. But this holding was expressly overruled in the case of Billingslea v. Glenn, Pro Ami, 45 Ala. 540.

Our conclusion is that the decree is due to be affirmed. It is so ordered.

Affirmed.

GARDNER, C. J„ and LIVINGSTON, SIMPSON and STAKELY; JJ., concur. BROWN and FOSTER, JJ., concur specially.