The question on this appeal is limited in the argument to the value of eighty acres of land owned by G. W. Shull at the time of his death on May 23, 1944, and occupied by him at the time as a homestead. There is no dispute that he owned no other land. The petition was filed by the widow under section 694, Title 7, Code, on the 11th of March, 1948. The petition contained the allegations required by that statute.
The deceased left surviving besides the widow, thirteen children of whom four were minors. Of them it is alleged that one, Alma, was then twelve years of age, and had died in February before the petition was filed in March 1948; that she had never married and left no descendants, and left as her only heirs at law her mother and the other twelve children of decedent, all of whom were named.
The court appointed two commissioners, as provided in section 694, supra, who made their report declaring that said eighty acres were the homestead of deceased at the time of his death, was the only real estate he owned at that time, and was valued by them at $1800.00. After notice was give to them of the filing of the report, exceptions were filed by six adult heirs of deceased, upon the ground that the eighty acres of land were worth more than $2,000.00 at the time of the death of deceased.
The issue thus made was heard by the probate judge on the testimony of witnesses given before him on the trial in open court. He made a finding of facts, reciting the substance of the evidence, and concluding that the land did not exceed in value $2,000.00 at the time of the death of deceased. All the other requirements of section 694, Title 7, supra, were without the issue made by the contest and were conceded.
The probate court entered a decree that the exceptions be disallowed and the report of the commissioners confirmed, and that said eighty acres of land be set aside, allotted and awarded to the said Lizza Shull (the widow), Ira Shull, Levie Shull Furlong and Tavia Shull Casola (the living minors), as their homestead exemption, and that an undivided one-fifth interest in the land be vested in each of them. The decree left unallotted the one-fifth interest of Alma, who was a minor when her father died, but died before the petition was filed.
As we have said, the only contested question here is whether the finding and decree of the probate court as to the value of the land at the time of the death of G. W. Shull should be reversed on this appeal.
What was said by this Court in the case of Tolar v. Clemons,250 Ala. 16, 33 So.2d 21, would apply in all respects in response to the contention here made. We could do no better than refer to it as expressive of our opinion on the issue thus made. This we do.
But the decree leaves a matter which is incomplete, and no reference is made to it in briefs of counsel. We have said no award was made of Alma's share. We think the statutes contemplate that the entire ownership be allotted in the decree to those who are entitled to it under applicable statutes. Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113. This does not imply a trial of a claim of title adverse to that of a deceased ancestor, which we have held to be unavailable in this proceeding. Howton v. Howton, 249 Ala. 122, 30 So.2d. 1.
The amended law as set forth in Section 702, Title 7, Code, provides that the property exempt and set aside vests title in the widow and minor children who were minors at the death of their deceased parent, though such minors be twenty-one years of age at the time of the allotment. It makes no provision as to the result of the death of a minor before allotment.
Without that statute, thus amending the law, the arrival of a minor of full age before a petition for allotment was filed, *Page 323 served to cut him off, but did not enlarge the widow's share. Buchannon v. Buchannon, supra. He merely took his place with the other heirs of his deceased parent who thereby became vested with that interest.
And if pending insolvency proceedings, the widow dies before the adjudication, we have held it cannot vest title in her since she was dead, and her heirs are not substituted in her place, but her deceased husband's heirs as such take her share. Martin v. Cothran, 240 Ala. 619, 200 So. 609. The same is true in allotment proceedings under section 694, supra. Walker v. Hayes, 248 Ala. 492, 28 So.2d 413, Craig v. Root, 247 Ala. 479,25 So.2d 147.
We think that the status of a minor dying before allotment is the same in that respect as the status of the widow thus dying within the contemplation of section 702, supra, which makes no change here material. Of course, it could not vest in the deceased minor. The result would be different if it vested in the heirs of the minor than if it vested in the adult children of her father.
But to be consistent with our former cases, we think the heirs of the deceased parent, as such, inherit from him that one-fifth interest: not the heirs of Alma. She never acquired that interest to be descendable to her heirs. This would mean that Alma's one-fifth interest should be allotted in equal part to the children of G. W. Shull who were adults at the time of his death. That is, that each of said nine adult children named in the petition should have an undivided one-ninth of an one-fifth interest in the land. Of course, such interest is subject to the right of occupancy by the widow as long as she lives and by the minors until they arrive at full age, section 661, Title 7, Code, except as therein provided. Buchannon v. Buchannon, supra.
The judgment of the probate court is modified as above indicated, and otherwise affirmed.
Modified and affirmed.
LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur.
BROWN, J., dissents.