Borodofski v. Feld, 40 So. 816

Borodofski v. Feld

40 So. 816 | Miss. | 1906

Lead Opinion

Oalhoon, J\,

delivered the opinion of the court.

The sole contention of appellant is that, under Annotated Code 1892, ch. 45, § 1965, and § 41, ch. 59, p. 79, Acts 1902, the proceeds of a life insurance policy, not exceeding $5,000, are not exempt to legatees under the will, if, as in this case, the legatees be nonresidents of this state. Tlie reliance to support this is on § 1986, ch. 45, Annotated Code 1892, which is this: “The exemptions in this chapter shall be allowed in favor of residents of this state only.” The testator, in the case of this record, was, when he made the will, and for years before, a resident and citizen of this state, and this section was for his benefit as a resident, and did not affect his heirs or legatees in their right to take, free from his creditors, whether they were residents or nonresidents. It was .not designed to be good for those heirs or legatees who were residents and bad for those who happened to be nonresidents. The whole ch. 45 of the annotated code of 1892 on exempt property refers exemptions to the exemptionists and is a favor to them. It is in their favor as residents, and is to give them the right. Be- • sides, sec. 41, ch. 59, p. 79, of the acts of 1902, above referred to, reproduces Annotated Code 1892, § 1965, and the chapter does not reproduce Annotated Code 1892, § 1986, but concludes with a repeal of all laws and parts of laws in conflict with it.

If a nonresident owned property in this state, and, being here, had made his will, or even one bequeathing life insurance to residents, there would be no exemption of it under the code as against his creditors, and for the reason only that he was nonresident, and sec. 1986 allows such exemptions “in favor of residents” only. By Annotated Code 1892, § 1982, the exemptionist may dispose of his exempt property at pleasure and may take his exempt personalty out of the state. See Meacham v. Edmonson, 54 Miss., 746-750, holding that, after abandoning his residence here and acquiring residence in an*37other state, he may recover his exempt property in our courts. He may dispose of his exempt property, real or personal, by will. Norris v. Callahan, 59 Miss., 140; Osburn v. Sims, 62 Miss., 429; Turner v. Turner, 30 Miss., 428. So, if sec. 1982 means anything, it means that sec. 1986 cannot refer to vendees, heirs or legatees, but to the person to whom the exemption right is given.

Affirmed.

Concurrence Opinion

Whitfied, C. J.,

delivered the following concurring opinion:

My view of this case may be very briefly expressed as follows: Sections 1964, 1965, ch. 45, Annotated Code 1892, were incongruously injected into that chapter, sec. 1965 being a new section and never had any logical place in that chapter, which is devoted to the ordinary kinds of personal property exempted from execution or attachment. There is a very marked distinction between the kinds of personal property enumerated in sec. 1963 of said ch. 45 and the proceeds of life insurance policies referred to in secs. 1964, 1965. The truth is it was a-gross blunder to put secs. 1964, 1965 in said ch. 45. The explanation perhaps is that no complete chapter on the subject of life insurance formed when the annotated code of 1892 was adopted any part of that code. Section 1986, it is true, is a new section, as enacted in the code of 1892. But to my mind it is clear that, even so, it was intended to apply alone to the personal property enumerated as “exempt” in sec. 1963. As supporting this it will'be observed that the language of sec. 1963 is: “The following property shall be exeunt,” etc.; whereas the word “exempt” is not used in either sec. 1964 or sec. 1965. But, apart from this critical view of the said three sections (1963-1965), as to their precise language, the controlling fact is that the legislature of 1902 created an insurance department, and in ch. 59, p. 62, of the acts of 1902, for the first time enacted a complete chapter on insurance, a chapter which is perfect and complete in all its parts, and manifestly intended so to be, in *38which chapter they reproduce secs. 1964 and 1965 of the annotated code of 1892 as secs.’40, 41, p. 79, of the acts of 1902, thereby very properly and wisely taking them out of the old chapter on “Exempt Property,” generally, of the kind embraced in sec. 1963 and putting them in the insurance chapter, where alone they ought never to have been placed; and whilst doing this the legislature left out of ch. 59, p. 62, of the laws of 1902, see. 1986 of the annotated code of 1892, and by the last section repealed all laws in conflict with said act of 1902. The purpose of the legislature is therefore perfectly obvious. It is just as if the legislature had said: “Section 1986 was never intended to apply to any ‘exempt property,’ excejit the kind mentioned in see. 1963. We find secs. 1964, 1965, about a wholly different kind of property, placed incongruously in this ch. 45. We take them out of that chapter and put them in the insurance chapter proper, where they belong; and as it was never the purpose to apply sec. 1986 to secs. 1964, 1965, we just leave sec. 1986 out of ch. 59, p. 62, of the acts of 1902.”