Appellees call attention to an apparent inconsistency between Buchannon v. Buchannon, 220 Ala. 72, 124 So. 113, and Haynes v. Haynes, 236 Ala. 331, 181 So. 757, and suggest that we make it clear that Haynes v. Haynes, supra, is to that extent overruled. But in respect to any such inconsistency it was said in Faulk Co. v. Boutwell, 242 Ala. 526, 7 So.2d 490, that the Court adheres to the Buchannon case, supra, pointing out that it was so recognized also in Bishop v. Johnson, 242 Ala. 551,7 So.2d 281. In Faulk Co. v. Boutwell, supra, it was earnestly argued by eminent counsel that it should not be considered as further authoritative, but the argument was not accepted.
We think the point is fully settled that when a homestead is set aside under section 702, Title 7, Code, to the widow and minors, and for any reason the title does not vest in one or more of them, the entire interest does not vest by such proceeding in those who are then entitled to take under section 702, Title 7, supra, and that the share which they do not take descends to the heirs of the deceased homestead owner. This view is approved apparently by counsel on this application, but argue that the one-fifth interest which never vested in Alma on account of her death was inherited by all the heirs of the deceased homestead owner, including the minors and including Alma; and that when Alma died her share descended one-half to her mother and one-half to the other twelve children of decedent.
That theory was not overlooked by us in considering the question and its logic is plausible. But we think that the homestead statutes, supra, and the descent and distribution statutes, Title 16, Code, should be treated in pari materia and as formulating a consistent whole in the matter of descents. When the homestead statutes, sections 661, 694 and 702, Title 7, Code, provide for the vesting of the legal title of the homestead in the widow and minors, and when the widow and some of the minors take a fee title under those statutes, we do not think that by Title 16, Code, it was intended that as heirs of the deceased homestead owner those minors should take a fee title both under Title 16, supra, and under the homestead statutes, sections 661 and 702, Title 7, supra, in respect to the homestead.
We know of no analogy which would support the theory that one and the same child in that relationship alone would inherit from an ancestor a fee title interest in a piece of property because he is a minor and from the same ancestor another interest in fee in the same property because he is an heir regardless of his age.
We think the vesting of the fee title in the widow and minors of the homestead is in lieu of the descent of such title in the homestead to them under the law of descent and distribution. Title 16 Code. We do not think the harmony of our statutes supports the theory that a minor child may inherit from the same ancestor a fee title in the homestead as a minor child and another such title in the same *Page 326 property as an heir irrespective of his age. On like principles, the widow did not have a dower right in that one-fifth interest in addition to the fee she took by virtue of her homestead rights.
Because of her death, the title to an interest in the homestead never vested in Alma by reason of her being a minor child. Her only interest in the inheritance therefore was under section 1, Title 16, Code, as though she were an adult heir. There were nine other adult heirs, making ten with her, who inherited from the deceased owner the one-fifth interest which would have vested in Alma had she lived until it was set aside under sections 694 and 702, Title 7, Code.
So that the status of the rights of the parties should be computed on the following basis: Alma inherited a 1/10th of 1/5th of the whole. That is a 1/50th of the whole. When she died, her mother inherited from her one-half of that interest or 1/100ths of the whole. Section 1, Title 16, Code. The other 1/100ths was inherited by the twelve remaining brothers and sisters, so that each inherited from Alma a 1/12th of the 1/100ths' interest or a 1/1200ths' interest in the property. The respective interest of all the parties is as follows:
Lizza Shull 1/5th plus 1/100ths equals 21/100ths 252/1200ths
Ira Shull 1/5th plus 1/1200ths equals 241/1200ths
Levie Shull Furlong 1/5th plus 1/1200ths equals 241/1200ths
Tavia Shull Casola 1/5th plus 1/1200ths equals 241/1200ths
Nine remaining children each 1/50th plus 1/1200ths equals 25/1200ths 225/1200ths ----------- 1200/1200ths.
As thus modified, the application for rehearing is overruled.
LIVINGSTON, LAWSON, SIMPSON and STAKELY, JJ., concur.
BROWN, J., dissents.