72 Ala. 121 | Ala. | 1882
On the 13th day of March, 1876, John Keith executed a note to William Baker, by which he promised to pay him $444.52, one day after date, with interest from January 1st, 1876. The note contained this clause: “And as part of the consideration hereof, I hereby [waive] all right which I may have, under the constitution and laws of Alabama, to have any of the property of the said John Keith exempted from levy and sale under legal process.” The execution of this paper by Mr. Keith was attested by a subscrbing witness; and the question is made, whether this is a waiver of the homestead exemption. There can be no question, that the waiver would be sufficient, if the right depended alone on the constitution of 1875. But this note, with the attempted waiver, was executed March 13th. Nine days before that, the legislature, by act approved March 4th, 1876 (Parnph. Acts, 123; Code of 1876, § 2848), prescribed the manner in which such exemption should be evidenced. Its language is: “When such waiver relates to realty, it shall be made by a separate instrument in writing, and must be signed by both husband and wife, if the resident has a wife, and the execution of such instrument must be attested by one witness.” ■ The waiver in this case not being made “by a separate instrument in writing,” it follows that it is insufficient and inoperative in all matters relating to the realty. Homestead being realty, and that being the question raised by this record, this cause must be determined as if there had been no attempt to waive the exemption.
In May, 1877, under a petition by the administrator to the Probate Court, three commissioners were appointed, who, among other things, allotted to Eliza S. Keith the lands in controversy as a homestead, — one hundred and sixty acres, valued at one thousand dollars. This allotment was reported to the Probate Court May 31st, 1877. William Baker contested the allowance of said homestead claim before the Probate Court, whereupon the probate judge ruled as follows: “After due consideration of the testimony offered in the matter of the contest as made by William Baker, a creditor of said estate, and a claimant on a note made by said deceased, waiving all exemptions. it appears to the court that the real estate of which said John Keith was seized and possessed at the time of his death, is subject to administration, and to the payment of costs and expenses of administration, and the payment of debts due by said estate.” In acting on these exceptions, the Probate Court erred. After the formation of the issue on the exceptions filed, that issue should have been certified by the Probate Court to the Circuit Court, to be therein tried at the next term thereof. Code of 1876, § 2841.
We have shown that the waiver in this case is invalid as to the lands. If it had conformed to the statute, in what manner could such liability be made available against the real estate of .a deceased debtor ? The statute has made provision for enforcing the liability, when suit is brought and prosecuted to judg
"When Mr. Keith died, the exemption statute approved April 23d, 1873 (Pamph. Acts, 64), governed the question of Miss Keith’s homestead. It is contended for appellee that, under section 3 of that statute, the real estate in'controversy is absolutely exempt from the payment of debts.. Its language is, “ That the homestead of a family ... of any resident of this State, after his death, shall be exempt from the payment of debts; Provided, such decedent leaves surviving him a widow or child.” In Thompson v. Thompson, 51 Ala. 493, the language above copied was construed by this court. It was there held that, to come within the statute, the child left surviving must be under twenty-one years of age. We concur in this construction, and thinlc that sections 12, 14, 15 of the statute demonstrate that our predecessors were right in their view. The particular contention in this case is, that by the operation of said section 3, the homestead became exempt from the payment of debts, but not from the law of descents, unless the estate proved insolvent, when the surviving widow or minor children, one or both as the case might be, would take in fee. Thompson v. Thompson, supra, is relied on in support of this, view. The question in that case arose on personal property.
It is contended for the, appellee, that because Mr. Keith’s estate was insolvent, the exemption of the homestead, which otherwise would have continued only during the minority of Miss Keith, became thereby enlarged into a fee. Section 15 of the act of 1873 reads as follows: “ That the homestead exempted for the benefit of the widow and minor child or children under this act, may be retained by such wife, or by such child or chil-' dren, until it is ascertained whether the estate is solvent or insolvent ; and if the estate is insolvent, shall vest in them absolutely. If the estate is solvent, the homestead shall be held, considered and treated as a part of the real estate of the decedent, without reference to this act.” It will be observed, that this right to retain has for its subject the homestead exempted for the benefit of the widow and minor child or children. We can not think the legislature intended by this to enlarge the minor’s mere right to oecupn/, beyond the period of minority. The purpose, we think, was, that this right to occupy, which, in the event the estate is solvent, determines when the occupant becomes twenty-one, shall be enlarged to an absolute title^ in the event the estate proves insolvent. The purpose was to enlarge an existing estate or interest, not to create a new one, after the first had terminated. The estate in the present case, on the basis that the estate was solvent, was a right to occupy three months and eight days. That was the estate the statute provided for the enlargement of. At the time of its termination, July 23d, we are not informed the estate was insolvent. It may not have been insolvent. Destruction of property, depreciation in stocks or other securities, failures of debtors, and many possible events or casualties, may render estates insolvent, which were amply solvent at the time of decedent’s death. So,
The reasonableness of this interpretation will be much more manifest, when we inquire, what would be the result of the opposite view. The same language is employed, and in the same sentence, to define the rights of the minor child, and of the surviving wife. The words must receive the same construction in the one case as in the other. If we hold that, in the case of a minor child, the possession of the homestead is to be retained by such minor until it is ascertained whether the estate is solvent or insolvent, and this notwithstanding such minor may reach his or her majority long before the fact of solvency vel non is, or can be ascertained, how can this principle be made applicable to the widow? Her right to occupy the homestead continues, in all cases, during her life. How can that mere right to occupy be prolonged, so as to cover an additional period, while the question of the solvency of the estate may remain in doubt? Suppose she dies before that fact is ascertained ; who is there to occupy during the doubtful period ? And if she die while the estate is considered solvent, and, by some unforeseen event or disaster, it becomes necessary to have it declared insolvent, does a new right of homestead, overleap-ing the chasm, spring up in her heir at law ? Such, it would seem, would be some of the consequences of holding that the right of the minor to occupy the homestead is prolonged beyond the period of minority, that it may be ascertained whether the estate is solvent or insolvent; or, the statute means one thing when applied to minors, and an entirely different thing when applied to the widow. We know of no canon which will authorize such interpretation. The chief policy of maintaining the right of homestead exemption after the death of the owner, is that the widow and minor child or children, in consideration
There being in this case no valid homestead exemption, the error of the judge of the Probate Court in himself setting aside the allotment, without referring it to the Circuit Court, worked no injury. And there being no homestead exemption in the way, the Probate Court had authority to grant the order of sale. The probate proceedings being regular, and title made to Baker, the purchaser, he established his right to recover the premises sued for. The Circuit Court erred in the charge given. It should have’ been in favor of the plaintiff.
Reversed and remanded.