117 Ala. 432 | Ala. | 1897
The right of a widow and minor child or children of a decedent to an exemption of the property specified in the statute, — section 2545 of Code of 1886, — is absolute and unqualified ; and is not, in any event, in' anticipation of the distributive share to which either may be entitled on final settlement and distribution of the estate. The additional exemption of personal property provided in the succeeding section, 2546, to the amount of $1,000, is in anticipation of the distributive shares or of legacies, if there be a will. The right and title to that allowed by the first named section above as stated, is, absolute and unqualified in the widow and minor child or children, and the title to it does not vest in the personal representative of the estate. The right and title of that .exempted under the last named section is also absolute and unqualified, but it can not ripen into a title to particular property until there is a selection of it, and it is thereby individualized and separated from the mass of the personal property to which the title of the personal representative extends. This is the rule in solvent estates, and in estates where tile amount of the property exceeds the exemptions allowed to the widow and the husband’s children.— Mitcham v. Moore, 73 Ala. 542 ; Bell v. Hall, 76 Ala. 548 ; Little v. McPherson, 76 Ala. 552.
But if a decedent, at his death, does not own personal property exceeding in value one thousand dollars, there is no room or reason for a selection, to separate and individualize it from any other property of the estate in which the representative would have a title. There would be none of the latter class from which to separate it, and a selection of what there is on hand, would, therefore, be unnecessary. The law intervenes in such cases and attaches the right of exemption as absolutely as if the particular property had been selected, set apart and declared exempt. This would be the case, whether there was administration on the estate or not, and without reference to what person might be the administrator. Administration would be useless in such a case. Alley v. Daniel, 75 Ala. 405; Nance v. Nance, 84 Ala. 375, 378 ; Chandler v. Chandler, 87 Ala. 300, 303 ; James v. Clark, 89 Ala. 606.
The same rule prevails as to the homestead exemption, where the area and value of the. homestead does
In this case, the bill shows that the personal property of decedent was only of the value of four or five-hundred dollars. The law appropriated this without any selection to the widow and the minor children,- and its retention and appropriation by her for the purposes allowed by the. statute, may be said to have been a selection of it by her.
It is also shown that decedent owned a tract of land, whether in the country or town is not shown, worth about $1,000. If it was the homestead, the widow had the right to occupy it, and there was no need of laying formal claim to it as exempt. Moreover, it does not appear that the land was ever sold by the administratrix for any purpose. If not, it remains, descended to the complainants as the only children and heirs of their deceased father-
To maintain this bill, complainants should have shown, ■that Mrs. Jackson came into the possession of property, and converted to her own purposes, to which she was not entitled under the exemption laws. A surety on an administrator’s bond is only liable for property, which came to the administrator’s hands which was subject to administration. The bill not only fails to make such a case, but it reasonably enough appears, that the very reverse was the case. The demurrer to it was properly sustained.
Affirmed.
