The bill of complaint shows that the husband and father died in 1902 or 1903; therefore the homestead exemption was controlled by the Code of 1896. McDuffie v. Morrisette,184 Ala. 360, 63 So. 542. From aught that appears from the averments of the bill the 160 acres in question was all the real estate owned by the husband Long at the time of his death, and that it did not exceed $2,000 in value. This being the case, the widow and minor children took the absolute estate under section 2071 of the Code of 1896, whether the same had or had not been set apart. Faircloth v. Carroll, 137 Ala. 243,34 So. 182. The bill does aver that at the time of filing same the land is worth more than $2,000, but it does not aver that it was worth more at the time of the death of the husband. The test is whether or not all of the land left exceeded the homestead exemption, and in ascertaining this fact the value should be considered as of the time of his death and not based upon an enhanced valuation 17 or 18 years thereafter and which could be due, in whole or in part, to the thrift and industry of the widow and minor children. In other words, to yield to the appellants' contention would lead to the conclusion that notwithstanding the real estate left by the decedent did not exceed the exemption in area or value, and therefore under the law vested absolutely in the widow and minor children, it could be divested by a subsequent enhancement in value many years thereafter. This is not the law, and the test is: What was the land worth when the husband died, and not 17 or 18 years later?
True, section 2071 of the Code of 1896 has undergone a change as brought over as section 4198 of the Code of 1907, but said change can have no application to this case, which is governed by the law as it existed when the husband died.
The circuit court did not err in sustaining *Page 156 the respondents' demurrer to the bill of complaint, and its decree is affirmed. Affirmed.
McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.