89 So. 171 | Ala. | 1921
Section 4203 of the Code provides that —
"Before grant of administration, and before the exempt property is set apart, the right of the widow and minor child or children, or either, to the use and benefit of such property, shall be the same as if it had been set apart as exempt."
Exemption laws are liberally construed in favor of widows and minor children. Chandler v. Chandler,
"The right to the exemption is not dependent upon the existence of an administration. The purpose of making it is the maintenance of the widow and minor children, a purpose which could not often be accomplished, if the right was dependent upon the existence of an administration. The necessities of the widow and children will sometimes require, in order that they be maintained, that a selection of property be made, and the property used, before there can be administration granted." — Mitcham v. Moore,
In that case it is also said that —
"A selection before a grant of administration, made by the widow, or by the guardian of the minor children, like a selection made subsequent to the grant, depends for validity, and for its sufficiency to pass title, upon the value of the property selected."
In the instant case it does not appear that the widow made any formal selection of or claim to any particular animals, as the exempted portion of her husband's estate, yet, inasmuch as she used the sheep as such, by selling and appropriating the proceeds of their wool, and by selling also some individuals of the flock, and that she used some 17 head of cattle, cows and steers, as such, by selling them and appropriating their proceeds, or collecting and appropriating the damages for their wrongful killing by another, it must, we think, be intended that she selected and claimed those animals as a part of her exemption, and to that extent has satisfied and foreclosed her claim.
The exemption allowed by the statute cannot be duplicated in whole or in part; and if, in anticipation of its formal claim or allotment, the claimant has by informal selection or appropriation had the benefit of the exemption allowed by law, the appraisers must take notice of that fact and include in their allotment, as a part thereof, or as the whole, as the case may be, the items of property already appropriated in that behalf by the claimant. Such a procedure is not the interposition of a set-off against the claim of exemption, but is merely the recognition of a selection already made. This practice is certainly equitable, and is in harmony with the spirit as well as the letter of the statute. We find no precedent from a court of last resort, but the practice was held proper, at nisi prius, in the case of In re Rierdon, 5 Ohio N.P. 516, cited in 18 Cyc. 398, note 32.
The statute requires the appraisers to estimate the property selected "at its appraised value." Code, § 4206. This authorizes a valuation as of the date of the appraisal, and does not require an appraisal based upon the value at the time of decedent's death, or at any intermediate time. There is nothing in the evidence to show that the valuation returned by the appraisers, as of the date of their appraisal, was substantially insufficient or erroneous.
It is apparent that the trial court has charged the widow with the value of the wool sold from the sheep, and has erroneously denied the right of exemption in toto. It is also apparent that the appraisers failed to take into account the fact that the widow had previously converted and appropriated the proceeds of some 17 head of cattle, aggregating about $460, which, with the flock of sheep, would, as valued, leave only about $70 for additional exemptions.
The probate court has full power under section 4213 of the Code to make all necessary corrections and adjustments with respect to excessive or insufficient allotments, and, reversing the decree appealed from, we will remand the cause for further proceedings in accordance with the principles above announced.
If, as now seems necessary, the allotment must be corrected by striking off some of its items, after adding to it the items to be charged as for previous selection and appropriation, the court will allow the widow, so far as practicable, to select and renounce the items to be stricken as excessive, as provided by section 4206 of the Code.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur. *88
