95 N.C. 163 | N.C. | 1886
(Johnson v. Cross,
The following facts were admitted by counsel upon a case agreed, after the defendants, who were the creditors and heirs-at-law of Charles Smith, had made themselves parties defendant before the justice of the peace.
Charles Smith died intestate on the _____ day of __________, 1886, owning at the time of his death, one-half acre lot in the town of Danbury, on which is a small store house, as the only improvement, worth about two hundred and fifty dollars, and no other real estate. He also owned personal property, and solvent credits to the amount of about five hundred dollars, and at the time of his death was indebted to the amount of about three hundred dollars. There had been no administrator appointed to administer his estate. No homestead nor personal property exemption had been allotted to him previous to his death, nor had he ever applied for the same.
At the time of his death, he left him surviving the petitioner, his widow, and no children, but brothers and sisters as his only heirs-at-law.
The petition in this case is on the part of the widow, to have the above-mentioned town lot and personal property assigned to her as a homestead and exemption for the benefit of herself.
At the time of his death he was indebted to Samuel McDonald and others to the amount of about three hundred dollars. *162
From the above facts it is for the Court to say whether the said Laura Smith is entitled to a homestead and personal property (165) exemption in the above-mentioned house and lot and personal property.
The creditors and heirs-at-law resist the application, on the ground that inasmuch as the intestate had made no application for, nor had his homestead and exemption laid off and allotted to him during his lifetime, that she cannot now do it.
Upon this state of facts the justice of the peace gave judgment for the petitioner, granting the prayer of the petition, from which the defendants appealed.
In the Superior Court, the judgment of the justice was affirmed, and the defendants appealed to this Court. We assume that the proceedings had in the Court below were regularly taken, as no objection was made in this Court upon that ground.
As to the personal property exemption, we think there was error in the judgment of the Court below. The widow was not entitled to that exemption. There is no provision in the Constitution, nor any act of the Legislature, which gives her such a right. In Johnson v. Cross,
But there was no error in the judgment so far as it gave to the widow her homestead in the land of her husband. The defendants contended that the widow was not entitled to a homestead in the land of her deceased husband, unless it had been laid off, and quantity and valuation fixed with some definite description, in the lifetime of the husband, for § 5, Art. 10, of the Constitution provides, "If the owner of a homestead die, leaving a widow, but no children, the same shall be exempt (166) from the debts of her husband, and the rents and profits thereof shall inure to her benefit, during her widowhood, unless she be the owner of one in her own right." That the meaning of this provision is, that the widow is not entitled to a homestead in the lands of her husband unless he himself was the owner of the homestead, which *163 he cannot be unless it has been laid off and allotted to him in his lifetime, and that the act of 1868-'69 (The Code, § 514), cannot have the effect of enlarging the benefits given by the Constitution.
It is too late to raise these questions, for they have been too well settled by the decisions of this Court.
The constitutionality of the section of The Code referred to, was considered and decided in the case of Watts v. Leggett,
And as to the other exception taken by the defendants, that the widow was not entitled to a homestead because it had not been allotted to her husband in his lifetime: Without going into a discussion of the question, and showing that the husband is the owner of the homestead, because he was the owner of the land, and the title to the homestead, thereon was vested in him by the Constitution, and not by virtue of any act of the Legislature, we need only refer to the case of Jemima Branch ex parte,
The only difference in the facts of that case and this is, that there the husband had made a conveyance of his land to a trustee for the benefit of certain creditors, in which was the following claim: "Except so much thereof as may be laid off and assigned as a homestead under the act of Assembly, and which is expressly excepted from this conveyance." That claim in the deed in no way distinguished that case from this, for by the exception in the deed, the land remained liable to the homestead, just as if no deed had been made.
The judgment of the Superior Court must be reversed, so far as it relates to the exemption of the personal property, and affirmed as to the *164 homestead. Let this be certified to the Superior Court of Stokes County, that the case may be disposed of in conformity to this opinion.
It is so ordered.
Cited: Tucker v. Tucker,