
    Hosea v. Davis, Admr.
    
      Petition by Administrator for Sale of LaAids for Payment of Debts.
    
    1. Decedent’s estate; rights of minors. — Where a married man at the time of his death owns other lands in this State than his^ homestead, and his estate has never been decreed insolvent, the rights of use and occupancy of the homestead, ^nd the perception of rents, incomes and profits therefrom, during the life of the widow or the minority of child or children, whichever might last terminate, vest in the widow and minor children; but they take no title to the land, and in the event one . . of said minor children dies, said child has no title in the land which can be sold after its death pending the minority of any of the other children.
    
      Appeal from the Probate Court of Clark.
    Tried before the Hon. John M. Wilson.
    The'proceeding in this case ivas had by the appellee, L. J. Davis, as the administrator of the estate of Irene Davis, deceased, filing a petition in the Probate Court of Clark County, asking to have certain lands, specifically described therein, sold for the payment of the debts of his intestate — it being averred in the petition that the said Irene Davis was, at the time of her death, the owner of a half interest in and to said lands. The petition was contested by the appellant, Beulah Hosea, who was formerly Beulah Davis, and was a sister of the said Irene Davis. The contestant moved the court to dismiss the petition upon the ground that the estate of the said Irene Davis had no interest in said lands described in the petition. This motion was over-ruled.
    Upon the trial, it was shown that J. M. Davis, the father of Irene Davis and the contestant, died on the 20th day of March, 1895, and left surviving him a widow and children. Subsequently, the widow died, and one surviving child, Irene Davis (the intestate of the petitioner), died, leaving Beulah Hosea, a surviving minor child. That at the time of the death of J. M. Davis, he owned other lands than his homestead. That the homestead had been set apart to Beulah Davis (now Beulah Hosea) as a homestead, and was occupied by her as such; and that she was at the time of the filing of the petition, a minor.
    Upon the hearing of the evidence, the Court granted the relief prayed for, and ordered the property sold in accordance with the prayer of the petition. The contestant appealed, and assigned as error the over-ruling of her motion to dismiss the petition and the judgment of the Court ordering the sale of the property.
    Davis & Green and W-. D. Dunn, for appellant.
    Lackland & Wilson, contra.
    
    This ex-parte proceeding by Beulah Hosea for the allotment of a homestead from the lands of J. M. Davis, deceased, ivas also void because the petition was wanting in jurisdictional averments in this, to-wit: It failed to aver that the lands OAvned by the decedent, J. M. Davis, at the time of his death Avas all of the real estate OAvned by him, and that it did not exceed in area 160 acres and two thousand dollars in value. Said petition does not contain the necessary statutory averments sufficient to confer jurisdiction upon the Probate Court, and a decree rendered thereon was absolutely void. — Brooks v. Johns, 119 Ala. 412.; Chamhlee et ais. v. Gole, 128 Ala. 649.
   McCLELLAN, C. j.

J. M. Davis at the time of his death OAvned other lands in this State than his homestead. Hence § 2071 of the Code — or rather the act of December 13th, 1892 — did not operate to vest title to his homestead in his'widoAV and minor children. His estate has never been declared insolvent. Hence title was not vested in them under § 2069. They took no title to the land, but only the rights of use, occupancy and the perception of rents, incomes and profits “during the life of the widoAV or the minority of the child or children, Avhichever might last terminate.” The AvidoAv and one of the minor children, Irene Davis, having died, these rights .enured solely to the surviving minor child, Beulah Davis, now Mrs. Hosea; and Avere confirmed to her by the setting apart of this land as homestead exemption to her subsequent to the deaths of her mother and sister. She is entitled to hold and occupy it during her minority, not only free from the debts of-her father’s estate but free also from descent, a continuation in a sense of the father’s homestead title. — Miller v. Marx, 55 Ala. 322, 342-3. Irene Davis therefore had at the time of her death no title to this land as a homestead, but only the right to use and occupy it during her minority. This right, of course, Avas cut short by her death. She had no right or title as an heir of J. M. Davis, deceased, which could be sold after her death pending the minority of Beulah Davis. Hence there Avas no authority in the probate court to order the sale of*any interest in the lana to pay the debts of her estate, while it Avas held by Mrs. Hosea as a homestead exemption. What the legal status of the land will be upon the termination of Mrs. Hosea’s said homestead by her attaining the age of tiventy-one years, the exigencies of. this case do not require us to discuss.

The probate court erred in decreeing the sale of an undivided half interest in this land to pay the alleged debts of the estate of Irene Davis, deceased. That decree will be reversed, and a decree will be here entered denying the prayer of the petition and dismissing it out of court.

Reversed and rendered.

Tyson, Simpson and Anderson, J. J., concurring.  