Childs v. Jones & Co.

60 Ala. 352 | Ala. | 1877

STONE, J.

We do not think the Circuit Court erred, in holding that the writ of execution Was in the hands of the sheriff at and before the death of Mr. Mobley, the defendant in execution. This operated a lien upon his property, from the time it was received by the sheriff; and this lien was kept alive by the re-issue of executions, without the lapse of an intervening term, until the levy was made; and the lien is still preserved, so far as we are advised.—Hendon v. White, 52 Ala. 597.

2. The remaining question arises on the claim of exemption asserted in favor of decedent’s family. He left adult children, hut neither wife nor minor child, surviving him. This claim depends on the statute, “To regulate property exempted from sale for the payment of debts,” approved April 23, 1873. — Pamph. Acts, 64. That statute, section 3, declares, that “personal property, to the value of one thousand dollars, of any resident of the State, after his death, shall be exempt from the payment of debts; Provided, such decedent leaves surviving him a widow or child.” This section is silent on the question of the minority of the child, and. unexplained, would appear to support the claim of exemption set up in this case. But this language does not stand alone, or unexplained. Section 12 declares, “That any person dying, leaving a widow, or child, or children, under the age of twenty-one years, members of his family, in addition to the exemptions heretofore made under this act, there shall be exempt” various other enumerated articles of personal property. Section 13 provides, “That whenever an executor or administrator makes out an inventory of the estate of any decedent, who left surviving him a widow, or minor child, it shall be his duty to permit said widow, or the guardian of such child or children, if there be no widow, or she does not act, to select the property exempt from administration for the payment of debts,” &c. Section 14, “That any child, leaving the family of deceased, is entitled to an equal share of personal property reserved by exemption under this act, and which may be on hand at the time such child ceases to be a member of the family.”

It will be observed that, under section 3 of the act, the same provisions are made in reference to the homestead, as are made in reference to the thousand dollars of personal property, after the death of the owner thereof. Each is, in the same language, declared to be “exempt from the payment of debts; Provided, such decedent leaves surviving him a widow or child.” Yet, section 15, speaking of the homestead, says, “That the homestead exempted for the benefit of the widow and minor child or children under this act, may be retained,”&c. This language clearly imports that, upon the death of the owner, the homestead does not descend, or continue exempt, unless there be a widow, or minor child or children. This is a legislative construction of the language employed in section 3, so far as it provides for a succession to the homestead, and we feel bound to give tbe language the same construction, when it speaks of the personal property.—Alford v. Alford, at the last term. We hold, that a surviving widow or minor child is necessary, under the act of 1873, to a continuance of the exemption of a thousand dollars of personal property, after the death of the execution-debtor.

There is no. error in the record, and the judgment of the Circuit Court is affirmed.