The appellants insist petitioner has no interest now in this 88 acres of land, and cannot institute and maintain this proceeding to establish her title, that the report of the commissioners should have been disallowed and the petition dismissed under authority of Thompson v. Miller, 204 Ala. 502,85 So. 689. This court so held, but we cannot concur in that conclusion. The facts in that case are strikingly different from the facts in this case. There, the widow sold the homestead several years before filing the petition, and waited more than 20 years after her husband's death before instituting the proceeding. Here, the widow filed the original petition within a year after her husband's death, and the sales of the property were not made until the court by decree, without fault on her part and without appointing commissioners to appraise the property, decreed she owned under the facts the title to the land absolutely. There are other facts differentiating this case from the Thompson Case, supra.
The case of Thompson v. Miller, supra, is clearly wrong in holding, if the widow sells the land after her husband's death, she cannot afterwards institute proceedings under this statute (section 4224, Code 1927) to have the probate court by decree ascertain and declare the facts on which her title to the property is based. This statute does not so state. It allows the widow to institute this proceeding under the circumstances mentioned therein. It does not give her this right, provided she has not sold the property after her husband's death. This land was not occupied by decedent as a homestead at the time of his death, but the trial court held, and found from the evidence on the contest of the report of the commissioners, the following facts to exist:
"That the said J. R. Hinson died January 8, 1914, in Geneva county, Ala., and was at that time a resident of said county, and left surviving him Elizabeth Hinson, his lawful wife, and no minor children, and that no administration has been granted upon the estate of J. R. Hinson, and that the property described in the petition was all the real estate owned by the said J. R. Hinson, and it appearing that the same does not exceed 160 acres, but in fact consists of only 88 acres, and worth less than $2,000."
These facts were reported by the commissioners, and are sustained by the evidence, and they entitle the widow to a decree confirming the report of the commissioners setting apart this property to her in fee simple as a homestead. Section 4227, Code 1907 (now section 7951, Code 1923), provides when this is done the property should be held and governed by section 4196, Code 1907 (now section 7918, Code 1923). This statute (section 4196, Code 1907) provides this property so set apart as a homestead "shall not be sold or partitioned by order of any court until the death of the widow and the youngest child is of age, except by the order of the chancery court for reinvestment with the consent of the widow in writing, if living." Yet this court has wrongfully held the widow can forfeit her right to the homestead by selling it after her husband's death, and before it is set apart to her. This holding is contrary to this statute.
The widow by these sales forfeited no rights under this statute (section 4224, Code 1907). The Legislature, by a clear pronouncement (in section 4197, Code 1907), declared:
"And in no case, and under no circumstances, shall the widow and minor children, or either of them, be deprived of homestead or two thousand dollars in lieu thereof, if they or either of them apply therefor in manner as herein provided, before final distribution of the decedent's estate."
This mandate was ignored by this court in Thompson v. Miller, supra, and it is ignored by the majority of the court in this case.
The exemption statutes should be liberally construed so as to protect widows and minors, or either, in their homestead rights, and under no circumstances should this widow be deprived of this homestead or the right to it. She has applied for it. There has been no administration of her husband's estate. The court by decree should give it to her but the decree deprives her of it, contrary to the statute. Section 4197, Code 1907.
This court in this case is depriving this widow of her homestead rights contrary to *Page 403 the plain letter and clear spirit of the statutes. It should not be done. The decree of the lower court should be affirmed, and the holding in Thompson v. Miller, supra, should be overruled.
One of the prime objects of this statute (section 4224, Code 1907), requiring these proceedings either by the widow or next friend of the minor or minors to be appointed by the judge of probate, is to have the facts judicially determined and declared by decree of the court, on which the title to the property is based, so the facts will not rest in parol, liable to be forgotten or lost by time through death of witnesses. These proceedings, when the requirements of the statutes are followed, firmly fix the facts existing at the time of the death of the husband, on which the title to the property (the homestead) rests. They become a part of the record in the cause, and the title to the homestead is made clear from the record, for public examination, for the safety of the widow or minors or both, as well as for their heirs or vendees. The statute places the duty on the widow to institute these proceedings, and if there is no widow, or she does not act, then the probate judge may appoint a suitable person as the next friend of the minors or minor who must make the application. Section 4224, Code 1907.
The two deeds, one to Mrs. Leddon, and the other to Mrs. Bush, each contain covenants of warranty, called and known as "general covenants of warranty," binding on the petitioner, the widow of decedent, which gave her under the circumstances of this case the right to continue or to institute again these proceedings in the probate court after making these conveyances, in order to perfect the title to the homestead, and to have the facts upon which the title to the homestead rested at the time of the death of her husband determined and judicially declared by the probate court in a decree. Blair v. Morris, 212 Ala. 91, 101 So. 745; Tartt v. Negus, 127 Ala. 301,28 So. 713; section 4224, Code 1907. See, also, Jones v. Stokes, 179 Ala. 579, 60 So. 280.
SOMERVILLE and GARDNER, JJ., concur in the foregoing dissent.