Gist v. Lucas , 122 Ala. 557 ( 1898 )

TYSON, J.

— John Hardy died in 1887 in possession of a homestead leaving surviving him his widow, appellant, and two minor children who continued to reside thereon until and after appellant’s intermarriage with one Gist, her present husband. In 1894, appellant, with her husband and children, went to Washington City where her husband had employment in one of the government departments, and there remained until the summer of 1897, when they returned to Alabama, but not to the lands. During appellant’s stay in Washington she and her husband made regular visits to Alabama each year, and during those visits would go upon the lands and inspect them. The land was rented out by her from year to year during her stay in Washington and up to the time of the trial of this cause.

In 1888 the land in controversy was set apart by the probate court of Shelby county upon the petition of appellant, as a homestead for herself and minor children. After the homestead was set aside to appellant and prior to 1894, the estate of John Hardy was declared insolvent. The foregoing is a statement of substantially all the evidence in the case and about which there is no dispute.

The absolute title to the homestead was vested in appellant and her minor children as tenants in common. Code of 1896, § 2069, Code pf 1886, § 2543. The execution levied ran against appellant, and she is entitled to have exempted to her her interest in the lands as a homestead unless she had abandoned it. — Code of 1896, §2033; Code of 1886, § 2507. Did she abandon it as a homestead? Without repeating the evidence on this point, Ave are compelled to ansAver the question in the affirmative, on the authority of Blackman v. Moore-Handley Co., 106 Ala. 458, and authorities therein cited. The contention of appellant that she cannot be held to have abandoned her right because of the provisions of the act of February 28,1889, entitled an act “For the protection of widoAvs and minor children,” (Acts, 1888-89, p. 113), is without merit. This act was manifestly intended to prevent a forfeiture by a removal from the homestead by the widow or minor children in favor of the heir or creditor of the deceased husband or father when the right of occupancy Avas for the life of the Avidow or maturity of the child or children. In the case under consideration the appellant and her children had an absolute title and, therefore, there could never he a forfeiture to the heirs of Hardy or his creditors. The demurrer to appellee’s affidavit of contest Avas properly overruled. There was no error in giving the affirmative charge for appellee.

The judgment of the circuit court must be affirmed.