The opinion of the Court was delivered by
Mr. Chibe Justice McIvER.
The Court feels bound to say, in the outset, that the “Case,” as prepared for argument here, is so defective in several important particulars, that we have been compelled to gather the facts from a brief statement of the testimony set out in the “Case,” and from the decree of the Circuit Judge, although there are some manifest clerical errors in the latter, and at least one finding of fact wholly inconsistent with the testimony. The facts, as gathered from these sources, may be stated substantially as follows: On or about the 18th of April, 1895, Coleman Worley departed this life intestate, leaving as his heirs at law his widow, Emaline Worley, and his two sons, Jackson Worley and Rey Worley, the issue of a previous marriage, both of whom were of age at the time of the death of the intestate. Prior to and at the time of the death of intestate, the said Jackson Worley, an unmarried man, lived with his father, as a member of his family, and he still lives with petitioner, his step-mother, in the residence of the intestate. The only property of which the intestate died seized and *50possessed, so far as appears, consisted of a tract of land containing about 900 acres, and a small personal estate, consisting of cash on hand $257.57, and some articles of personal property, which when sold brought the sum of $251.49, making the value of the personal property in all $509.06. On the 17th of January, 1896, the said Rey Worley was duly appointed administrator of the personal estate of the intestate, and having duly qualified as such, obtained from the proper authority an order for the sale of the personal property, and- the same was sold on the 1st of February, 1896. At said sale the petitioner, Emaline Worley, bid off certain articles, at prices amounting, in all, to the sum of $30.55, and had never paid for the same. In February, 1896, Jackson Worley instituted an action in the Court of Common Pleas for partition of the real estate of intestate, to which the petitioner and Rey Worley — the latter in his own right, and not as administrator — were made parties defendant. The petitioner, Emaline Worley, filed her answer, but when, does not appear, denying the right to partition, and demanding, inter alia, that her homestead, as the widow of the intestate, be assigned and set off to her. Whether the other defendant, Rey Worley, filed any answer, does not appear. To the answer of Emaline Worley, the said Jackson Worley replied, denying her right to homestead, and claiming that, if homestead should be allowed, it should be for his benefit as well as hers. On the 12th of March, 1896, the said Emaline Worley filed a petition with the clerk of the court of common pleas (there being, as we assume, no master for the county of Horry, where the intestate died, and where his land lay), praying that a homestead be assigned and set off to her in the real and personal property of the intestate, her deceased husband. On the 19th of June, 1896, the commissioners appointed for that purpose made their return, setting off to the petitioner, as her homestead, the tract of land containing 900 acres, more or less, valued at $1,000; and, as her personal property exemption, the sum of $30.55, due by her to the administrator *51for articles purchased by her at his sale, together with the sum of $469.45 of the amount in the hands of the administrator, making the total amount $500. To this return, the said Jackson Worley, on the 17th of July, 1896, filed seven exceptions, which are set out in the “Case,” and should be embraced by the reporter in his report of the case, and the case came before his Honor, Judge Aldrich, upon the return and exceptions thereto, together with certain testimony which is set out in the “Case,” a copy of which is as follows: “The administration record of estate of Coleman Worley was in evidence, and by the administrator’s account of sales of personal property, the whole amounted to $251.49, and cash of intestate on hand $257.57, making a total personal estate $509.06, exclusive of choses in action, all of which were appraised doubtful. The administrator testified that he had not advertised for creditors of the estate to present their claims, but that he knew his father was not in debt; that intestate was accustomed to lending money, and did not go in debt; that the $65 due the lady was for borrowed money. The pleadings in the actions for partition were in evidence. The admistrator, as such, was not made a party to said action, but the plaintiff therein alleged that “the funds of said estate in hands of the administrator are largely more than sufficient to pay and discharge the expenses of administration, and any debts that may possibly be due and owing. In that connection, the plaintiff alleges that there are no debts owing by said estate, except, perhaps, expenses of the last illness of said intestate, for care and attention.”
On the 23d October, 1896, the Circuit Judge rendered his decree, a copy of which should be incorporated in the report of this case, wherein he adjudged that the petitioner was not entitled to any homestead exemption, and that her petition be dismissed. From this decree the petitioner appeals to this Court, upon the several grounds set out in the record, which need not be stated here, as we propose, in*52stead of taking up these grounds seriatim, to consider what we regard as the controlling questions in the case.
1 The Circuit Judge, after stating what he regards as the facts of the case, proceeds to consider the several exceptions to the return of the commissioners appointed to lay off the homestead. After stating that the first exception was abandoned at the hearing, and that the second, being based upon merely technical irregularities, he would pass over, as he preferred to dispose of the case upon the merits, he says: “The third, fifth, and sixth exceptions may be considered together,” but he manifestly meant the fourth, sixth, and seventh exceptions, as is conclusively shown by the exceptions as stated by him. These exceptions are treated as raising the question whether a right of homestead can be claimed where there are no debts; and finding as matter of fact that there were no debts, he concludes as matter of law that the right of homestead could not be allowed in this case. It is very clear that this conclusion of law rests upon the finding of fact that there were no debts; for he says in his decree that: “It was admitted in argument, and properly so, that if the intestate had died owing debts, or from any cause there were debts existing against his estate, and against which the widow could claim homestead, that she could maintain her proceeding herein.” So that it is manifest that the question, whether the conclusion of law above stated is correct, turns upon the inquiry, whether the finding of fact — that there were no debts — can be sustained. It seems to us clear, beyond dispute, that this finding of fact is not only without any evidence to sustain it, but is in direct conflict with the testimony. The undisputed fact is, that the intestate did owe, at the time of his death, at least one debt for borrowed money, amounting to $65; and it is claimed, and there is no denial of such claim, that he owed the petitioner $11. Besides this, he was indebted for the expenses of his last illness, the amount of which does not appear — which, in our view, is not material. And, in ad*53dition to this, his estate would be liable for the expenses of the administration of the estate. Whether there were any other debts cannot be certainly known, for the administrator admits that he never advertised for creditors to present their demands, as he was expressly required to do by section 2046 of the Revised Statutes, for the very purpose of enabling- him “to ascertain the debts due from the deceased;” and he is allowed twelve months from the grant of administration for that purpose; and that period had not expired when the administrator testified in this case, or even when the judgment appealed from was rendered. It is true, that the administrator testified that “he knew his father was not in debt;” but in view of the fact that, in the same breath, he also testified that his father owed some lady $65 for borrowed money, his hazardous assertion above quoted is entitled to no consideration whatever; for it certainly is a very hazardous assertion for any person to make that he knew a deceased person was not in debt, especially when the person making the assertion has deliberately neglected to pursue the course prescribed by law for the very purpose of ascertaining whether there were any debts. Indeed, the debtor himself may be ignorant of some claim against him, arising from suretyship or in some other way, which he has entirely forgotten.
2 3
The smallness of the amount of the admitted indebtedness of the intestate at the time of his death seems to be regarded by the Circuit Judge as a sufficient reason for disallowing the claim of homestead. But we are unable to accept that view. There is nothing in the statute which countenances the idea that, because the indebtedness is small in amount, such a circumstance is of any weight, or is even entitled to any consideration. On the contrary, the plain meaning of the homestead law, as it has been construed in numerous cases, is that, before any portion of the assets of the intestate can be properly applied to his debts, provision should be made for the homestead exemption, which cannot be touched for the payment of debts. *54For, as was said by the late Chief Justice Simpson, in Hosford v. Wynn, 22 S. C., at page 312, in speaking of the nature of the homestead exemption: “It simply takes property as it finds it, and, carving out a portion, exempts it for the time being from levy and sale, and marking it ‘homestead,’ puts the debtor, or his widow and children, as the case may be, in possession, with the right to hold against all comers;” and this was quoted with approval in the recent case of Glover v. Glover, 45 S. C., at page 54. Indeed, the same idea runs through all the cases upon the subject. If so, then it is clear that, the intestate being in debt at the time of his death, his widow and children became then entitled to claim a homestead exemption both in his real and personal property. Their right then vested, and what subsequently occurred cannot defeat that right. The fact that no objection was interposed, so far as appears, to the sale of the personal property by the administrator, and no claim of homestead exemption was then asserted, does not affect their right now, when it is interposed, as is clearly shown by the case of McMaster v. Arthur, 33 S. C., 512. Most assuredly, the payment of the debt of $65 by the administrator, out of the assets of his intestate which were in his hands, cannot defeat the claim of homestead, for several reasons. 1st. Because, as we have seen, the rights of the parties became fixed and vested at the time of the death of the intestate. 2d. Because the payment of the $65, even if legally made, still left other debts unpaid, for there is no pretense that the debts for the expenses of the last illness, or the funeral expenses, or the expenses of the administration, have ever yet been paid — to say nothing of the debt to the petitioner, which it is claimed was paid by reason of the fact that her purchases at the administrator’s sale, which she has not paid, would overbalance her debt. But whether a debt due by the widow alone could be extinguished by the application of any portion of the homestead exemption, which, as we shall presently see, was intended for the benefit of the widow and children, is a question which might *55admit of grave doubt, if we deemed it of sufficient practical importance in this case to be worthy of consideration. It is true, that the Circuit Judge does not say in his decree that “the expenses of the last sickness and funeral of intestate” have been paid; but there is absolutely no evidence to that effect. On the contrary, the plaintiff in the action for partition — the said Jackson Worley, who seems to be the only person resisting this appeal — alleges in his complaint, “that there are no debts owing by said estate, except, perhaps, expenses of the last illness of said intestate, for care and attention.” This exception shows that the debt for the last illness had not been paid when the action for partition was commenced, and though the administrator was examined as a witness, he did not say that such expenses or the expenses of the administration had ever been paid. But the third and conclusive reason is that the debt for $65 cannot be regarded as legally paid, because the administrator had no right to apply to the payment of this debt any portion of the assets in his hands, which amounted to only $9.06 above the homestead exemption, and even that small excess was, legally, first applicable to the funeral expenses and the expenses of the last illness. If, therefore, the administrator did pay the debt of $65, he must, necessarily, have used either the assets in his hands, which by law was exempt from the payment of debts, or he must have used his own funds for that purpose; and surely it cannot be successfully contended that an administrator can defeat the claim of homestead, by paying the debts of his intestate, either out of his own funds or out of the assets of his intestate’s estate exempt by law from the payment of debts. Such a doctrine would put it in the power of a malignant or selfish person to defeat the most just and righteous claim of homestead. Besides, it has not been made to appear in this case that the administrator paid this debt before the petition for homestead was filed, for it is stated that such petition was filed 12th of March, 1896; but at what particular time the debt was paid, does not appear; all that does appear is, that *56the Circuit Judge says in his decree that the debt was “paid last March;” and as the decree bears date 23d of October, 1896, the debt must have been paid in March, 1896, but whether before or after the 12th of that month, does not appear. So that respondent has failed to prove a fact essential to his contention, which fact it was in his power to prove, as the administrator was examined as a witness, and could have shown by his voucher the date of the payment relied on to defeat the claim of homestead.
Under this view of the case, it becomes unnecessary to consider the question, much debated in the argument here, whether a claim of homestead can be allowed where there are no debts; for, after having shown that there were debts, not only at the time of the death of the intestate (which, under our view, would be sufficient), but also at the time when the petition for homestead was hied, some of which have not yet been paid, so far as appears, it becomes a wholly speculative question, what would be the effect if there were no debts. It seems to us, therefore, that the Circuit Judge erred in disallowing the claim of homestead.
4 Another aspect of the case, however, remains to be considered. The first exception to the return of the commissioners appointed to lay off the homestead, which the Circuit Judge, in his decree, says was abandoned at the hearing, as we understand it, raised the question whether the clerk erred in granting the prayer of the petition for homestead, after due notice of the pendency of the action for partition; and yet the Circuit Judge holds that the third exception to the return is well taken, although, as it seems to us, the same question is presented by the third exception as that presented by the first exception, which was abandoned. Both of these exceptions impute error to the clerk in proceeding to appoint commissioners to lay off the homestead, solely upon the ground that the question as to the right of homestead was pending in the action for partition which had been previously commenced. But the fact that the first exception was abandoned at the *57hearing, causes some embarrassment in disposing of the question. Waiving this, however, in the interest of the respondent, we will proceed to consider the third exception just as if there were no other exception as to the point there raised. It is, no doubt, true, as a general proposition, that where two tribunals have concurrent jurisdiction of the same case, the one which first assumes jurisdiction must adjudicate the question involved, and neither party can be forced into the other jurisdiction. Jordan v. Moses, 10 S. C., 431. Now, while it is well settled that the Court of Common Pleas has no jurisdiction to appoint commissioners to admeasure and set off the homestead exemption (Ex parte Lewie, 17 S. C., 153, and Myers v. Ham., 20 S. C., 522), yet it is equally well settled that, where it becomes necessary to determine the right to homestead in any case properly pending in the Court of Common Pleas, that Court may determine the question of right to homestead, leaving the party claiming such right, if determined in his favor, to apply to the proper authority appointed by statute for that purpose, to carry into effect such right by having the homestead admeasured and set off to him. Munro v. Jeter, 24 S. C., at page 34. Swandale v. Swandale, 25 S. C., 393. So that it is clear, from these authorities, that the Court of Common Pleas, having jurisdiction of the action for partition, also had jurisdiction of the question of right to homestead, if it became necessary, as it doubtless would, to have that question determined. But it is not so clear that the clerk, when applied to for the appointment of commissioners to lay off a homestead, has any jurisdiction to determine the question of right to the homestead claimed. The case of Ex Parte Brown, 37 S. C., 181, practically decides that the clerk has no such jurisdiction, for Mr. Justice Pope, in delivering the opinion of the Court, uses this language: “We are not prepared to say that the clerk or master must judicially pass upon the right to homestead. It is opposed to reason to say that the clerk must act judicially with only one party to a controversy before him.” But that case also *58decides that the Circuit Court, upon exceptions to the return of the commissioners appointed by the clerk to lay off a .homestead, has jurisdiction to determine the question of right to homestead claimed. If, therefore, the clerk had no jurisdiction to determine the question as to the petitioner’s right to the homestead claimed, then this case does not come within the general rule above stated, upon the authority of the case of Jordan v. Moses, for it is not a case in which two tribunals have concurrent jurisdiction of the same question.
5 6 If it should be contended that the question of the right of homestead should be adjudicated in the action for partition rather than under exceptions to the return of the commissioners appointed to lay off the homestead, it is very manifest that such a position is based entirely upon form, without a particle of substance in it. The same question has been adjudged, between the same parties by the same tribunal, after full argument, and surely the fact that it has been adjudged in one form of proceeding rather than in another, is not worthy of consideration. If the Circuit Judge had based his conclusion upon the ground that the question of petitioner’s right to homestead, under exceptions to the return of the commissioners appointed to' lay off the homestead, could not be considered, because the same question had been raised and was then pending in the action for partition, then a very different question would have been presented. But, instead of doing this, he considers elaborately the question of the petitioner’s right to homestead, and disallows the claim, and only towards the close of his decree does he make any allusion to the third exception, which he disposes of with the simple remark, “This exception is well taken.” What the parties desired to obtain was an adjudication of the question of the petitioner’s right to homestead, and after having obtained such adjudication from the tribunal invested with original jurisdiction of such question, it would look almost like trifling with the administration of justice for this tribunal *59to deny them the right to have such adjudication reviewed by the Court appointed for that purpose, upon a purely formal ground, which does not in any way affect the merits. Besides this, we are by no means satisfied that the Court of Common Pleas could, under the action for partition, have undertaken to adjudicate the question as to the right of homestead, for that action was not only prematurely but improperly commenced. As has been stated, the action for partition was commenced within less than twelve months after the death of the intestate, and the administrator was not made a party. Now, while we are not aware of any statute, or any decision of a Court of last resort, which forbids the bringing of an action for partition before the expiration of twelve months from the death of the intestate, yet, as we understand, it was a settled rule of practice observed by the former Chancellors, not to entertain a bill for partition until after the expiration of twelve months from the death of intestate, for at least two very good reasons. 1st. Because, as has been said above, the administrator is allowed twelve months within which to ascertain whether there are any debts due, and until that period has expired, the Court cannot know legally, or with any certainty, whether there are debts; and surely it would be wrong to partition the estate of the intestate before it has been ascertained whether there are any debts due, and provision made for their payment. 2d. Such a practice would tend to defeat the rights of innocent creditors of the intestate, for it has been held that a creditor cannot subject the lands of his intestate debtor to the payment of his debt, where such lands have gone into the actual and exclusive possession of the heirs before the creditor has commenced his action for the recovery of his debt, either by partition or otherwise (Huggins v. Oliver, 21 S. C., 147); and if the lands have been sold before action brought by the creditor, the statute 3 and 4 of W. & M. would forbid his subjecting the lands, in the hands of the purchaser, to the payment of his debt. Now, as sec. 2322, Rev. Stat., forbids a creditor *60from commencing an action against the administrator for the recovery of any debt due by the intestate until after the expiration of twelve months from the grant of administration, it is very obvious, that if an action for partition should be entertained before the expiration of the twelve months, the rights of creditors might and probably would be defeated. The only instances, so far as we are informed, in which this salutary rule of practice has been disregarded are the cases of Pearson v. Carlton, 18 S. C., 47, and Williams v. Mallory, 33 S. C., 601, more fully reported in 11 S.E., 1068" court="S.C." date_filed="1890-10-02" href="https://app.midpage.ai/document/williams-v-mallory-6677307?utm_source=webapp" opinion_id="6677307">11 S. E. Rep., 1068, and the confusion, delay, and unnecessary expense which resulted in those cases, from a disregard of this salutary rule, afford ample illustrations of its wisdom.
7 But the action for partition was not only prematurely but it was incorrectly brought, inasmuch as the administrator was not made a party, as required by Rule 55 of the Circuit Court. Williams v. Mallory, supra. If it should be said that the allegation in the complaint for partition, that the funds in the hands of the administrator are largely more than sufficient to pay and discharge the expenses of administration, as well as any debts that may possibly be due and owing, dispensed with the necessity for making the administrator a party, the obvious answer would be, how could the Court know whether such allegation was true or not, when the administrator, not being a party, has had no opportunity either to admit or deny such allegation? The pleadings in the action for partition, though offered in evidence, are not before us, and, therefore, all we know of what they contain is what may be obtained from the Circuit decree, and from the statements contained in the testimony above set out.
8 There is only one other matter remaining to be considered, as to which the Court feels some embarrassment, arising from the fact that the return of the homestead commissioners is not before us. The fifth exception to that return imputes error to the commissioners in assigning the homestead to Bmaline Worley alone, whereas, *61if assigned at all, it should be for the benefit of the respondent, Jackson Worley, as part of the family of the said Coleman Worley, as well as for the benefit of said Fmaline Worley. Now, what the return does contain we do not know, as it is not before us, but from a remark made in the Circuit decree, which will be presently quoted, we suppose that the Circuit Judge considered that in the'return the homestead was assigned to Fmaline Worley exclusively. It does not appear that the Circuit Judge passed specifically upon this fifth exception; for, while he does quote what he designates as the fifth exception, the quotation shows, beyond dispute, that he was really considering the sixth, and he nowhere else alludes to the point raised by what is really the fifth exception, unless it be when he uses the following language: “To grant the demand of the petitioner is to give her the exclusive use of 900 acres of land and $500 in money for and during her life, at the expense of the children of her deceased husband by his first wife, and in utter disregard of their rights as heirs at law and distributees of the estate of their father” (italics ours). From this language it may be reasonably inferred that the Circuit Judge regarded the return as assigning the homestead to the petitioner, Emaline Worley, for her exclusive use and benefit. If the return does, in fact, so provide, then, in that respect, it was erroneous and should be corrected. Sec. 2129, Rev. Stat., expressly provides that where the intestate dies leaving a widow and children, the widow and children, not the widow alone, shall be entitled to the homestead exemption.
The judgment of this Court is, that the judgment of the Circuit Court be reversed, and the case remanded to that Court for the purpose of carrying out the views herein announced.