McCuan v. Turrentine

48 Ala. 68 | Ala. | 1872

B. F. SAFFOLD, J.

Section 2061 of the Revised Code exempts from the payment of the debts of a decedent five hundred dollars’ worth of his real estate for the benefit of his family, when it consists of a widow or child or children under twenty-one years of age, whether his estate is insolvent or not. The sixth subdivision directs that when the estate is insolvent, and it becomes necessary to sell the real estate for the payment of debts, three appraisers appointed by the probate court must lay off and set apart the same, &c., and the title to such land shall vest in the widow and child or children. If the real estate can not be so divided, and the appraisers shall so report, the probate court must order the executor or administrator to sell the real estate, and pay to such widow, or widow and child or children, five hundred dollars of the proceeds of the sale.

The omission of the creditors to file their claims against the estate could not annul the decree of insolvency. — Puryear v. Puryear’s Distributees, 34 Ala. 555.

It does not appear from the transcript that the widow had made any claim for dower, though it is argued by the counsel for the appellees that she had. But if she had made such an application, it would not avail the contestants.- — Jordan v. Strickland, 42 Ala. 315; Chisolm v. Chisolm’s Ex’rs, 41 Ala. 327.

There can be no doubt of the right of the widow and her children to the claim which they have applied for, unless they have forfeited it by their laches. In ordinary cases, where an execution is levied on property, the exemption is lost unless it is claimed before the sale. — Simpson v. Simpson, 30 Ala. 225. In cases of estates undergoing administration, the administrator is protected for eighteen months from the rendition of judgment in favor of creditors, in order that he may ascertain the solvency or insolvency of the estate. All existing claims of creditors not presented within that time are barred, and no heir or distributee can call upon him for distribution without proving that the estate is free from debt. No one is authorized to report the estate insolvent but himself, and he is made personally liable to the creditors if he suffers an execution against the estate to be returned “no property found.” The widow and children can not know the extent of their interest until he reports the estate insolvent or makes a final settlement.

In this case, the report of insolvency was made a short time after the sale of the land, and several months before the purchase-money became due. When the decree of insolvency was rendered, and it was necessary to resort to a sale of land, it became the duty of both the court and the administrator to protect the rights of the widow and children. They were not bound to move in the matter before they discovered themselves neglected, nor could they well do so until the report of insolvency was made. When that was done, their land had been sold for even less than the amount reserved to them by law, to pay debts from which it was exempt, whether the estate was insolvent or not. There is nothing in the defenses set up by the contestants which should defeat the application for the homestead.

The judgment is reversed, and the cause remanded.