The legislative intent clearly expressed in §§ 271 and 272, Title 61, Code of 1940, was to authorize the sale of the entire title to property in which the widow of a decedent had a dower interest by a proceeding in the probate court in the course of the administration of the estate upon the *Page 81 written consent of, the widow "so as to vest in the purchaser the complete title." § 271. And it is provided in § 272, "When the sale is confirmed, the court, on the application of thewidow, 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." [Italics supplied.]
By the act approved July 6, 1945, Acts 1945, p. 686, the last mentioned section was amended to read: "When the sale is confirmed, the court, on 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-third of the purchase money."
This amendment was in force at the date of the sale and the confirmation thereof, when the widow made application for the fixation of her claim. The clear legislative intent here was to authorize the court on proof to fix a fair equivalent for the dower interest to be paid in money and she had until the sale was confirmed to make application therefor, though she had previously consented to such sale.
The title to the property passed to the heirs at law incumbered by the widow's dower rights upon the death of the husband. Forman v. McAnear, 219 Ala. 157, 121 So. 538; Warner v. Warner, 248 Ala. 556, 28 So.2d 701. After the rights of the parties became fixed as a matter of law, it was not within legislative competence to alter the vested rights of the parties. To apply the subsequent statute, Acts of 1945, p. 686, amending § 272, Title 61, Code of 1940, would violate due process of law as provided in the constitution. Therefore, § 272 before its amendment by the Act of 1945, supra, is applicable in fixing the limit on the widow's dower rights in this case.
The measure of the widow's right is "a fair equivalent for the dower interest" at the time of the sale. The ceiling limiting the fixation of the value is on the sale price. If the land increases in value between the death of the husband and the sale, the wife is entitled to the benefit of the increase. If it decreases, she must stand the effect of the decrease.
I, therefore, concur that the decree of the court from which the appeal is prosecuted is due to be affirmed.