97 Ala. 677 | Ala. | 1892
— The first assignment of error brings for review the ruling of the court on the demurrer to the complaint. Appellee sues as the widow of Elijah Kellum to recover a debt alleged to be due by defendants to her deceased husband. Eor the purpose of showing her title to the debt, and her right to maintain the action, the complaint avers, that her husband was a resident of this State; that he did not own personal property exceeding in value one thousand dollars; that no administration has been granted upon his estate, and no personal property set apart to her as exempt from administration and debts. The suit having-been commenced before the Code of 1886 went into effect, is brought under, and by virtue of the provisions of the fourth section of “An act to set apart to widows and minors the property exempt from administration and debts, without any administration thereon,” approved February 12,1885. — Acts 1884-5, 114. The section provides, “That until such setting apart or administration, the widow, or if there be no widow,
The question raised by the demurrer is, whether, under the fourth section, when compared with the other sections of the act, no personal property having been set apart in the mode provided, and there being no administration, the widow is authorized to sue for the exempt property after the expiration of sixty d ays from the death of her husband.
The purpose of a selection is to separate the exempt property from the mass of the personal property of the deceased, thereby withdrawing it from administration, and attaching thereto the right of exemption. While, whether or not the personal property exceeds in value one thousand dollars, a selection must be made in one of the statutory modes, when there is an administration, yet, a valid selection may be made when there is no personal representative, sufficient to pass the title to the particular property selected, without pursuing any formal mode. When the property does not exceed in value one thousand dollars, and there is no administration, a selection is unnecessary; the right of exemption, in such case, attaches to the entire personal property absolutely and unconditionally. Possession, retention and use constitute a sufficient selection. — Mitcham v. Moore, 73 Ala. 542; Bell v. Hall, 76 Ala. 546; James v. Clark, 89 Ala. 606. The statute could not have been intended to prevent, when the conditions mentioned therein exist, the right of exemption from attaching to the property, unless set apart in the particular mode provided.
The same section declares the operation and effect of the statute, when the mode pointed out for having the property set apart as exempt, is pursued. That section makes it the duty of the commissioners appointed by the probate judge, to return to the Probate Court a complete inventory of all the personal property, with a fair valuation of the same, and then, declares, “Upon the confirmation and approval of such report by the probate judge, all the title, rights, privileges
Proceeding on the necessity of some person being authorized to preserve the property for the uses intended, when there is no personal representative to whom the title passes, the fourth section confers on the widow, or if no widow, on the guardian of the minor children, the right and authority to sue for, and recover the same, and bring such suits as an administrator or guardian might bring. The right continues until the property is set apart, with the necessity. The limitation of sixty days were intended to allow persons interested that length of time in which to have an administrator appointed before the widow could apply to have the property set apart for her, — a limitation as to the time when she may make the application, and not upon her right to sue. The demurrer was properly overruled.
The remaining assignments of error involve the same question, and may be considered together. The defendants, three in number, are sued as late partners under the firm name of “Z. W. Laney & Co.” The complaint described a joint contract made by them. The evidence showing, that Z. W. Laney & Co. were not indebted to the husband of plaintiff, and that the firm was dissolved about January 1, 1883, the court permitted the plaintiff to prove, against the objection of defendants, that her husband, at the time of his death, in 1884, had money on deposit with Balkum & Armstrong, a partnership composed of only two of the defendants. On this evidence, the jury, under the ruling of (the court, returned a verdict for the defendant, Laney, and against the others; and judgment was rendered accordingly. The ruling of the court on the admissibility of the evidence, and the rendition of the judgment, it is contended, are justified by section 2609 of the Code, which declares, “When a suit is instituted against several defendants, whether sued as partners or otherwise, the plaintiff may recover against one, or more.” The statute was not designed to give a right of recovery against some of the defendants, when the complaint, in a suit instituted against several, describes a contract made by all jointly, on proof of a contract made by part of them. It does not create a right of recovery inconsistent with the complaint, but was intended to authorize a recovery against one or more of the defendants, when some of them are discharged from liability on the contract alleged in the complaint, upon personal defense, not negativing the
Beversed and remanded.