127 Tenn. 680 | Tenn. | 1913
delivered the opinion of the Court.
George W. Agee died intestate, on October 9, 1908, in Memphis, Tenn., leaving the complainants as his only children, and Mrs. Kate Saunders Agee as his widow. She qualified as his administratrix, and has since died, and the defendant, D. D. Saunders, has qualified as her executor. Mrs. Kate Saunders Agee, as the widow of George W. A^ee, applied to the probate court of Shelby county for the appointment of commissioners to set apart to her a year’s support under the statute applicable to that subject. The deceased left no property, except two insurance policies, one of which was payable ’ to the widow, and therefore belonged to her, and the ' other payable to his estate. The commissioners set apart)
The foregoing is the substance of an agreed case submitted to the chancellor. He decreed in favor of the defendant, and the complainants appealed to this court.
The question submitted is whether the insurance policy was properly applied to the payment of the year’s support. We are of the opinion that it could not be so used, and that the chancellor’s decree was erroneous, and should be reversed, for the following reasons:
Our statute upon the subject of the year’s support reads:
“Upon the application of the widow of an intestate, or of a widow who dissents from her husband’s will, the county court shall appoint three freeholders, unconnected with her either by consanguinity or affinity, who, being first duly sworn to act impartially, shall set apart so much of the crop, stock, provisions, moneys on hand or due, or other assets, as may be necessary for the support of such widow and her family until the expiration of one year after the decease of her husband.” Shannon’s Code, sec. 4020.
“A life insurance effected by a husband on his own life shall inure to the benefit of the widow and next of kin, to be distributed as personal property, free from the claims of his creditors.” Shan. Code, sec. 4030.
There is another section to the same purport, which reads as follows:
“Any Rife insurance effected by a husband on his own life shall, in case of his death, inure to the benefit of his widow and children; and the money thence arising shall be divided between them according to the law of distributions, without being in any manner subject to the debts of the husband, whether by attachment, execution, or otherwise.” Shan. Code, sec. 4231.
An insurance policy so left is, according to these sections, exempt property. Such property is not assets. The term “assets” is defined in our Code by exclusion as follows: Every debtor’s property, except such as may be specially exempt by law, is assets for the satisfaction of all his just debts.” Shan. Code, 3985. The term “assets,” therefore, under our law of administration, means, in its largest sense, property Subject to the payment of the debts of the decedent. It is divided into personal assets and real assets. There is another division also, known as equitable assets. Personal assets are those which go into the hand of the administrate for the payment of debts, and this is the class referred to in section 4020. Real assets consist of land, which must be subjected by special proceeding- Equitable assets may be either real or personal, but require the
It is perceived that under section 4020 the -year’s sup-: port must be taken out of “the crops, stock, provisions, moneys on hand or due, or 'other assets.”
Since, an exempt insurance policy is not assets, it does not fall within the terms of the statute.
This .reasoning is not impaired by the fact that an administrator after the debts are paid, must pay to the distributees any of the assets left in his hands, and that the duty also devolves upon him to collect an insurance policy payable as the one involved in the present case, and . that he must distribute the amount collected between the widow and children as distributees of the estate. Both funds are subject to distribution, but both are not assets. One falls under the designation of assets left over after the payment of debts; the other, under the heading of exempt property, which is not subject to debts. The latter must be distributed as soon as collected, without regard to debts. The year’s support must be taken out of the assets, not out of the exempt property.
The subject is further illustrated by section 4023 of ¡Shannon’s Code, which is as follows: “The property 1 exempt by law from execution shall, on the death of the husband, be exempt from execution in the hands of, and be vested in, the widow, without regard to the size or solvency of the estate of the deceased, for herself and in trust for the benefit of the children of the deceased, or of the widow, pc. efe both, typl s&all not go to the exec*
A decree will be entered in accordance with this opinion. The defendant will pay the costs of the cause.