Opinion
8 Div. 663.
October 29, 1953. Rehearing Denied January 14, 1954.
Appeal from the Circuit Court, Lawrence County, S. A. Lynne, J.
Wm. Stell, Russellville, for appellants.
Good pleading required that the interest of each alleged tenant in common should be set forth clearly. Case v. Pfaffman, 253 Ala. 511, 45 So.2d 453. The presumption that when a child furnishes articles and services, including board and attention, to a parent the presumption that such were gratuitous, may be overcome by a contract, express or implied, to pay for them. Duncan v. Johnson, 239 Ala. 183, 194 So. 528. Homestead cannot be sold or partitioned except for reinvestment and with consent of widow in writing if living. Gladden v. Macri, 245 Ala. 605, 18 So.2d 552; Code 1940, Tit. 7, § 661.
Patrick B. Harris, Tuscumbia, for appellees.
The bill need not specifically allege in figures the respective interests of cotenants in the land, where the entire estate came to the heirs by descent cast and as matter of law vested in equal parts. Stokes v. Stokes, 212 Ala. 190, 101 So. 885. Services rendered or article furnished by child to parent are presumed gratuitous. Lowery v. Pritchett, 204 Ala. 328, 85 So. 531; Nelson v. Nelson, 210 Ala. 592, 98 So. 885; Duncan v. Johnson, 239 Ala. 183, 194 So. 528. Prohibition of Code 1940, Tit. 7, § 661 against sale of homestead until death of widow and youngest child is of age, does not prevent widow or child by proper proceedings from selling their interests. Williams v. Uptagrafft, 232 Ala. 454, 168 So. 570; Judd v. Dowdell, 244 Ala. 230, 12 So.2d 858.
This is a proceeding to sell lands of an intestate for division of proceeds among his widow and children as his only heirs and next of kin.
The complainants are his widow and three of his children and defendants are his remaining four children, all of age and his only heirs. The bill sets forth clearly these facts and therefore was not demurrable for a failure to specify the proportionate share of each tenant in common. The bill exhibits the widow's interest in the land and that the interests of the seven children came to them by descent and therefore as a matter of law were vested in them in equal parts. Hence, the law fixes the shares and a specific allegation of figures to that effect was not necessary. Stokes v. Stokes, 212 Ala. 190 (4), 101 So. 885.
Nor was § 661, Title 7, Code 1940, inhibiting the sale of a decendent's homestead under certain conditions an impediment to the proceeding where, as here, there were no minor children and the widow consented to the sale and joined in the proceeding to that end. Williams v. Uptagrafft, 232 Ala. 454, 168 So. 570; Judd v. Dowdell, 244 Ala. 230, 12 So.2d 858.
The defendant Mrs. Carruth filed an answer and cross bill claiming $30 per month for eighty-four months for services rendered in taking care of her mother, Mrs. Essie Willis, and a small amount for repairs to the property. The trial court decreed against this claim and we think rightly so. There is no clear showing of any agreement between Mrs. Willis and Mrs. Carruth to substantiate the claim. The latter and her family lived on the place and had the benefit of its usufruct most of the period for which the claim is made and we do not regard the claim as well proven. Services rendered and articles furnished by a child to a parent or by a parent to child are presumed gratuitous and the evidence here is too uncertain and unsatisfactory to override this presumption. Duncan v. Johnson, 239 Ala. 183, 194 So. 528; Nelson v. Nelson, 210 Ala. 592, 198 So. 885; Lowery v. Pritchett, 204 Ala. 328, 85 So. 531.
We entertain the view the decree below was proper.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and CLAYTON, JJ., concur.