I am not in agreement with the interpretation made by the majority as to the meaning and effect of the decree of the probate court from which this appeal is prosecuted. While said decree standing alone is not expressed in the clearest verbiage, it is made clear when read in connection with the report of the commissioners setting apart and allotting homestead exemptions to the widow and minor children of the decedent living at the time the report was made and the proceedings instituted. The decree confirms the report and vests in said exemptioners the legal title to said property, as provided by the statute. Code of 1940, Title 7, § 702. It leaves nothing open for administration or distribution to the nine adult heirs at law of said decedent under the statutes of descent and distribution in consequence of the death of the youngest child Alma. Nor was the right of the adult heirs to inherit from Alma within the scope of the proceedings or the statutory and limited jurisdiction of the probate court. The statute authorizing the proceedings makes no provision for the right of succession to property set apart as exempt to the widow and minor children from administration and the payment of debts. The language in which it is couched leaves no doubt as to its purpose. As has often been stated, the purpose of the statute is to secure to the widow and minor children a home, and if the land (the subject of the exemption) is all the real estate owned by the decedent at the time of his death and it does not exceed in area and value the amount exempt to the widow and minor children, the mandate of the statute is that it be "decreed or determined to vest title absolutely in the widow and minors."
There are no complications as to the law governing the exemptioners' rights. The decedent died since the statute was amended and as it now appears in said § 702, supra. Certainly there is no special significance in the fact that Alma inherited with all the other heirs, including the minors, the legal title to the property and that it passed to them under the statutes of descent and distribution. Her right as an heir is no higher or greater than the right of the adult heirs and the effect of her death on the proceedings *Page 324 was to cut off the right of inheritance under the statute of descent and distribution along with other heirs and to vest in the widow and minor children then living the entire title to said property. The statute provides:
"In all proceedings under this chapter to set aside, allot or decree homestead exemptions to the widow or minor children, where the title to the property so exempt or set aside vests title absolutely in the widow or minor children, one or both, the children who were infants or minors at the death of their deceased parent shall be held to take jointly with the widow and other minors or infants, if such there be, though such minors or infants be twenty-one years of age at the time the homestead is allotted, set apart, decreed or determined to vest title absolutely in the widow or minors."
The majority relies strongly on the case of Buchannon v. Buchannon, 220 Ala. 72, 75, 24 So. 113, 115, in which case the only question presented was whether or not the delay of proceedings to set apart the exemptions until the minor children became of age entitled them to the benefit of the statute. The law was plainly stated in that case in the following language:
"Our conclusion is that, so long as there is a widow and minor children, or either, having a possessory homestead right, an appropriate proceeding may be had to set apart the homestead and to judicially determine the facts upon which they take an absolute title. We limit this decision to proceedings had within 20 years from decedent's death. The property should be set apart only to the widow and minor child or children, or to minor child or children, who are minors at the date of such proceedings, and an absolute title vests in them only."
Following this plain declaration of the law, the writer of the opinion in that case undertook to explain and interpret his language and it is this dictum, constituting the 10th section of that opinion, that the majority follow rather than the plain declaration of the law in that case.
The case of Williams v. Overcast, 229 Ala. 119, 127,155 So. 543, was a bill filed to set aside the decree of the probate court challenging the same as void and subject to be vacated on collateral attack. The court ruled in that case that the decree was not void and that the bill was without equity. The only part of the opinion applicable to the case in hand is the following, found on page 127 of 229 Ala., on page 550 of 155 So.: "The other Justices adhere to the decision in Buchannon's case, and hold that Charlie Overcast was not entitled to the benefit of the enabling statute (section 7956, Code), and that when he became of age without the homestead being set aside, he took his place with the other adult heirs."
In Craig v. Root, 247 Ala. 479, at page 481, 25 So.2d 147, at page 148, the decedent died in 1914 and the provisions of the exemption statutes applicable to that case were embodied in the Code of 1907, as stated in the opinion of the court: " 'It is agreed between the parties that the only question at issue is whether or not, under the facts of this particular case, the said Millie Root, widow of Isaiah Root, is lawfully entitled to have the homestead set aside to her on her application filed more than twenty years after the death of the said Isaiah Root, the contention of the next of kin of the said Isaiah Root being that failing to file her claim for exemption within twenty years, her right to said exemption is barred by laches or by prescription of twenty years.' " The widow having remained in possession, that contention was denied, this court in that case properly holding, "* * * 'We find nothing in the statute nor in the policy behind exemption laws, which would limit the widow's right to interpose her claim to the period during which the status as to minority of children existing at the time of decedent's death still continues.' * * *." This quotation was taken out of the Buchannon case, supra, and is applicable to the Root case, the rights of the parties being fixed at the time of the death of the decedent in that case. The Root case, supra, has no bearing on the question which we have here.
The case of Walker v. Hayes, 248 Ala. 492, 496, 28 So.2d 413, is also cited and relied on by the majority. The question presented in that case was brought about by the widow's death, there being no minor children, after the proceeding was commenced and before the report of the commissioners *Page 325 appointed to set apart the exemptions was confirmed by decree of the probate court. That case holds that the affect of the widow's death, there being no minor children, was to terminate the right of any person to have the exemptions set apart. That case is an authority for the proposition that the death of Alma, the young child in the instant case, terminated her right to claim exemptions or to any right or benefit from exemptions claimed by the other minor children and the widow. By her death before the exemptions were set apart, her rights as an heir at law were in the same class as the rights of the adult heirs to take under the statute of descent and distribution. And all those rights were cut off by the exemption proceedings.
The effect of the majority opinion is to becloud the title of the widow and minor children and put a weapon in the hands of the adult heirs at law of the decedent to annoy them in the enjoyment of their homestead rights.
I am of opinion that the decree should be affirmed without any explanation or correction and I, therefore, respectfully dissent.
On Rehearing