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$300 ; Rhode Island (1882 P. S. c. 185, children are not entitled. Thompson $ 3), $200; Texas (1888 R. S. Arts. 1993– v. Thompson, 51 Ala. 493 ; especially 95), $500; Vermont (1880 R. L. S 2108), where they have adequate means of not less than one-third after debts and support. Estate of Steele, 13 Phila. expenses ; Virginia (1887 Code, S 3630), 398. And children whose father is real and personal property not exceed- living cannot take the exemption from ing $2000; West Virginia (1891 Code, the property of their deceased mother, c. 41, $ 27), not exceeding $200.

King's Appeal, 84 Pa. St. 345 ; although What law governs exemption. The they do so where he has deserted their widow's right to exemptions and allow- mother and not been heard from in ances for support, like that of distribu. more than seven years. Himes' Aption generally,

governed by the law peal, 94 Pa. St. 381. But the fact that of the husband's domicil, Richardson the widow has obtained relief by bor0. Lewis, 21 Mo. Ap. 531 ; Rottenberry rowing money will not deprive her of v. Pipes, 53 Ala. 447; and by the law the statutory relief. Lisk v. Lisk, 155 which is in force at the time of his Mass. 153. death. Davis v. Davis, 63 Ala. 293 ; The exemption can be claimed by Leib v. Wilson, 51 Ind. 550; Swayze residents only, Munds v. Cassidy, 98 V. Wade, 25 Kan. 551. It has been N. C. 558; and not by a non-resident held, in Alabama, that the rights of family, even though the deceased creditors as against such claim of father resided in the state, Ex parte exemption are to be determined by the Pearson, 76 Ala. 521; Allen v. Manasse, law in force at the time their debts 4 Ala. 554; nor a fortiori where both were created. Bell v. Hall, 76 Ala. 546. decedent and his family are non-resi

Who may take-Non-residents. To dents, Auerbach v. Pritchett, 58 Ala. support the claim to the statutory 471 ; nor by the wife of a resident who exemption for the family" of the resided herself in another state under deceased, there must be either widow an invalid divorce, Pratt's Appeal, or minor children or both. Childs v. 80 Pa. St. 501 ; or who has resided Jones, 60 Ala. 352. It is sufficient if abroad and never been part of her he had a widow without children resid- husband's family within the state, ing with him at the time of his death, Spier's Appeal, 26 Pa. St. 233; although

Fisher, 6 N. Y. 597; or, in Ned her continued residence abroad was Jersey (1877 Rev. 763, § 53), a widow due to her husband's desertion when he or children residing “in his family at emigrated to this country. Estate of his death.” If there is no widow, the Coates, 12 Phila. 171. In these cases children take the whole. Estate of an exception is made to the general rule Alexander, 13 Phila. 564 : Whitcomb of domicil or legal residence of the wife v. Reid, 31 Miss. 567. So, if there are following that of her husband, her no children, the widow takes the whole, separation from her husband constitutCompton v. Perkins, 92 Tenn. 715; ing, as in the case of the allowance for Carpenter v. Brownlee, 38 Miss. 200 ; support, a reason in the policy of the Newman v. Winlock, 3 Bush 241. If law, if not in the words of the statute, there are no children by that marriage, for withholding the benefit. But the the widow takes the whole to the New York statute applies equally to exclusion of infant children of a former residents and non-residents. Kapp v. marriage, Nevins' Appeal, 47 Pa. St. Public Administrator, 2 Bradf. 258. 230 ; not residing with her. Alexander Possession and title. In some states v. Alexander, 86 Ky. 688. But adult the widow may hold the exempted

Kain v.


property against the administrator him- whom she bequeathed all her property, self, Eans v. Eans, 79 Mo. 58 ; although where she died without claiming the selected by her before administration exemption and had accepted the first granted, Jenks v. Terrell, 73 Ala. 238 ; husband's will, which gave her in case Mitcham v. Moore, Id. 542 ; and with- of her remarriage “only what the law out inventory or appraisement. Adkin- allows her.” Estate of Machemer, 140 son v. Breeding, 56 Ia. 26. The reten- Pa. St. 544. tion and use of the property will not Amount of exemption. Up to the constitute her an executrix de son tort, amount fixed by the statute the allowBrown v. Walter, 58 Ala. 310 ; but the ance of the statutory exemption is title vests directly in her in some states, valid, although it nearly exhausts the Kellogg v. Graves, 5 Ind. 509 ; Morris entire estate. Estate of Palomares, 43 v. Morris, 9 Heisk. 814; and not in the Cal. 402. But it cannot ed the administrator, even though the admin- statutory amount, Applegate 0. Camistrator has obtained an order that it eron, 2 Bradf. 119; and the appraisers be sold as part of the assets of the have no discretion to allow estate, Grafton o. Smith, 66 Miss. 408 ; Sheldon v. Bliss, 8 N, Y. 31. If the and she may sụe the administrator for administrator allows her to take a it in trover, although she made no greater amount, he is chargeable to demand for it before it was sold. Curd creditors, but only for the excess 0. Curd, 9 Humph. 171.

allowed. Byrd v. Jones, 84 Ala. 336. The widow without children takes The widow is entitled, however, to the exemption as her absolute property, both pecuniary allowance and specific Bryant v. McCune, 49 Mo. 546 ; Comp- articles exempted by different statutes, ton v. Perkins, 92 Tenn. 715; and not Lyendecker v. Eisemann, 3 Dem. 72 ; as part of her dower for life. Bryant Kelly v. Moore, 18 Abb. N. C. 468 ; v. McCune, ubi supra. She may dis- although, in Florida, the allowance for pose of it as her own. Benjamin v. her temporary support is to be charged Laroche, 39 Minn. 334. On her remar- as part of the exempted property riage and subsequent death it will go allowed to her. Carter v. Carter, 20 to her surviving husband, and not to Fla. 558. So, in Louisiana, the pecunthe children of her first husband, iary exemption includes all that has Compton 0. Perkins, 92 Tenn, 715. been received from the estate, Succes

sion of Waddill, 44 La. An. 361 ; and On the death of the widow before

a benefit insurance which was payment the exemption must be de- expressly payable to his family. Suclivered or paid to her personal repre- cession of Wellmeyer, 34 La. An. 819. sentatives, Hastings v. Myers, 21 Mo. Dower Testamentary provisions. The 519; York o. York, 38 Ill. 522; or next widow's exemption is, in general, indeof kin. Carter v. Carter, 20 Fla. 558. pendent and exclusive of her dower. But the statutory right of selection Cheek v. Wilson, 7 Ind. 354 ; State o. does not survive to her representatives, Steers, 72 Mo. 656. So, in New York, Drew v. Gordon, 13 Allen 120 ; and under the act of 1889 providing an her representatives cannot maintain allowance of $1000 where her dower trover for such articles against the hus- and other exemptions are altogether band's administrator where she died less than that sum. Matter of Tipple, before making the selection. Tucker 2 Connoly 598. v. Henderson, 63 Ala. 280. So, they do In like manner she may take the not survive to a second husband, to exemption and also any bequest or

ubi supra.


other provision of her husband's will, Loring o. Craft, 16 Ind. 110 ; Smith v. Smith, 76 Ind. 236; Whiteman 0. Swem, 71 Ind. 530; Nelson v. Wilson, 61 Ind. 255 ; Estate of Peebles, 157 Pa. St. 605 ; Compher v. Compher, 25 Pa. St. 31 ; Matter of Klosterman, 6 Mo. Ap. 314; Vedder v. Saxton, 46 Barb. 188 ; Matter of Walkerly, 77 Cal. 642 ; but not where the will is inconsistent with such action, Langley 0. Mayhew, 107 Ind. 198; e. g., by disposing of his entire personal property, Matter of Tobin, 40 N. Y. S. R. 366 ; Miller v. Stepper, 32 Mich. 194 ; Shafer v. Shafer, 129 Ind. 394 ; although this has been held not to be inconsistent, in Shipman v. Keys, 127 Ind. 353. So, a bequest in lieu of the “personal property allowed by law" has been held to refer to and bar the exempted personal property, but not to affect the general distributive share of the widow. Kinney 0. Kinney, 34 Mich. 250. So, a legacy in lieu of dower" and all claims and rights as my widow" defeats the exemption. Estate of McMarcus, 14 Phila. 660; or a devise of the homestead for life. Mulford v. Mulford, 15 Stew. (N. J.) 68. But she is not deprived of her exempt property by a bequest in lieu of dower. Hatch v. Bassett, 52 N. Y. 359.

The husband cannot deprive the widow of her exemption by his will, Graves v. Graves, 10 B. Mon. 31 ; McReary v. Robinson, 20 Miss. 318; Linton v. Crosby, 61 la. 293 ; Ward v. Wolf, 56 Ia. 465 ; Runnels v. Runnels, 27 Tex. 515 ; Vedder v. Saxton, 46 Barb. 188 ; Hasenritter v. Hasenritter, 77 Mo. 162; although this restriction does not apply to specific property exempt from execution, and the widow cannot follow it unless she renounces the will, Turner v. Turner, 30 Miss. 428; or even on her renunciation of the will. Nash v. Young, 31 Miss. 134.

Separate estate. The widow will

not be barred of her exemption by the fact that she has a separate estate, Johnston v. Davenport, 42 Ala. 317; Coleman v. Brooke, 37 Miss. 71 : Whitley v. Stephenson, 38 Miss. 173 ; Darden v. Reese, 62 Ala. 311 ; Thompson v. Thompson, 51 Ala. 493; Mabry 0. Ward, 50 Tex. 404 ; or has a separate estate and has no children. Wally v. Wally, 41 Miss. 657. If, on the other hand, the statutory exemption is confined to a widow in necessitous circumstances and her available property consists of a policy of life insurance on the husband's life, the pecuniary exemption may be allowed to her as an advance to be repaid on receipt of her insurance money. Succession of De Boisblanc, 32 La. An. 17.

Claim- When and how made. In general, where the statute lays down no precise rule, the exemption must be claimed by the widow within a reasonable time. It should be made in the Probate Court and before the appraisement of the personal property, Estate of Heller, 11 Phila. 120 ; and before the administration is closed, McGowen v. Zimpleman, 53 Tex. 479 ; and before the order for distribution. Estate of Hunt, 14 Phila. 330. It may be made at the time of presentment of claims against the estate, Estate of Rizer, 15 Phila. 547; or after they are barred for non-presentment. North v. Probate Judge, 84 Mich. 69. It may even be made after the lapse of several years, if no embarrassment is caused in the settlement of the estate. Lisk v. Lisk, 155 Mass. 153. But it is too late after years have elapsed and the widow has married again, Burk v. Gleason, 46 Pa. St. 297; or even within the year after the sale of all the personal property, Williams' Appeal, 92 Pa. St. 69 ; or generally after such sale, Henderson v. Tucker, 70 Ala. 381 ; Little v. McPherson, 76 Ala. 552 ; Lawley's Appeal (Pa.), 9 Atl. Rep. 327 ; or after the

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payment of debts, so far as there is not sufficient personalty left after payment of the expenses of administration, Estate of Tibbin, 5 Phila. 100. And her application made after the sale of the personal property will not be satisfied out of the proceeds of the real property. Drowry 6. Bauer, 68 Mo. 155.

A formal demand is not necessary, Estate of Williamson, 12 Phila. 144 ; or a presentment, as in the case of debts of the estate. Miller v. Miller, 82 Ill. 463. Her taking possession and retention of it may be of itself sufficient, Estate of Williamson, ubi supra ; even without the required appraisement and inventory, Adkinson v. Breeding, 56 Ia. 26 ; although a formal allowance cannot be made by the court without due appraisement, Estate of Somers, 14 Phila. 261 ; which appraisement is conclusive, in Pennsylvania, as to the valuation of the chattels, but not as to securities or moneys. Estate of Seller, 82 Pa. St. 153.

Form of payment. In many states the widow may claim cash as part of her exemption, Estate of Seller, 82 Pa. St. 153; Nelson v. Smith, 20 Miss. 662 ; Matter of Durscheidt, 47 N. Y. S. R. 419 ; Estate of Reavis, 50 Ala. 210; Carter v. Carter, 20 Fla. 558; but this will extend only to cash on hand, Finney's Appeal, 113 Pa. St. 11 ; or the proceeds of personal property sold. Cummings v. Cummings, 51 Mo. 261 ; Kingsbury v. Wilmarth, 2 Allen 310. And she may select a watch as part of ner exempt property, Crow v. Hubard, 62 Md. 560 ; and if she has retained and not inventoried property amounting in value to more than the exemption, she will not be allowed the exempted articles. Cornwell v. Deck, 2 Redf. 87. But she can only have property which the intestate owned at the time of his death, Johnson v. Henry, 12 Heisk. 696 ; e. g., not property in which

he owned only one-half interest. Baucus v. Stover, 24 Hun 109.

Where the personal property is insufficient, the widow may have the exemption paid, in Pennsylvania, out of the proceeds of the real property, estate of Ranke, 12 Phila. 67 ; Estate of Andress, 14 Id. 263; Estate of Thomas, 152 Pa. St. 63; but not in Missouri, Jewell v. Knettle, 39 Mo. Ap. 262 ; Estate of Lloyd, 44 Mo. Ap. 670; Ritchey v. Withers, 72 Mo. 556; and not, in Pennsylvania, where the personal property has been disposed of and she has neglected to make her claim against it. Estate of Deck, 6 Phila. 72.

Preference to debts. In general, the widow's exemption is preferred to all debts of the estate, Estate of Dennis, 67 Ia. 110 ; Boyden v. Ward, 38 Vt. 628 ; Mason v. O'Brien, 42 Miss. 420 ; and, in Massachusetts, to expenses of last illness and funeral and administration also. Kingsbury v. Wilmartb, 2 Allen 310. And even judgment cred. itors of the deceased have no control over the selection of the exemption, although they may oppose an unfair appraisement. Estate of Graves, 134 Pa. St. 377. In some states, if the estate is less than the statutory amount of exemption, she will take the whole free from the debts of the deceased. And choses in action so taken by her will not be subject to the set-off of a claim by the defendant against the estate, Haugh v. Seabold, 15 Ind. 343 ; but the estate so taken by her will be subject to the payment of the expenses of the last illness and funeral of the intestate, Green 0. Weaver, 78 Ind. 494; unless there is sufficient real property for their payment. McCord v. McKinley, 92 Ill. 11. She can only take specific property subject to a mortgage made by the intestate in his lifetime, Loeb v. Richardson, 74 Ala. 311 ; Kauffman's Appeal, 112 Pa. St. 645; Allentown's Appeal, 109 Pa. St.

any interest

75 ; Nerpel's Appeal, 91 Pa. $t. 334 ; although it will be clear of debts of the decedent that are not liens, Hill v. Hill, 42 Pa. St. 198; and in some states clear of a judgment against the deceased which was a lien on the land taken, Quackenbush v. Taylor, 86 Ind. 270 ; Kauffman's Appeal, supra ; Spencer's Appeal, 27 Pa. St. 218; Notter's Appeal, 45 Pa. St. 361 ; although a levy was made in the lifetime of the husband. Dixon v. Aldrich, 127 Ind. 296. So, where goods were sold by the administrator and the proceeds taken by the widow as part of her exemption, the fund will be clear of a vendor's lien which was not asserted against the goods before the sale, Lewis v. Steiner, 84 Tex. 364. And, in Pennsylvania, the property taken by the widow for her exemption is clear of mechanics' liens, Hildebrands' Appeal, 39 Pa. St. 133 ; and taxes. Allentown's Appeal, supra. On the other hand, where a widow has taken property by devise from her husband subject to his debts, her surviving children will only be entitled to take their exemption in it subject to the same. Wanger's Appeal, 105 Pa. St. 346.

In general, the exemption is the same whether the estate is solvent or insolvent. Baldy's Appeal, 40 Pa. St. 328 ;

Hill, 32 Pa. St. 511 ; Davis v. Davis, 63 Ala. 293 ; Lowry v. Herbert, 25 Miss. 101. So, in Alabama, if there are minor children, but otherwise the widow cannot where the estate is sol. vent have her statutory exemption out of the real property in preference to the rights of heirs and distributees. Thornton v. Thornton, 45 Ala. 274. And where the estate is solvent, the exemption goes to the widow and children only as an advance on their distributive shares. Hunter v. Low, 68 Ala. 365.

Release and waiver-Ante-nuptial agreement. A widow waives her right of exemption by neglect to claim an appraisement, Hufman's Appeal, 81

Pa. St. 329; and without appraisement, taking but part of the property to which she is entitled. Baskin's Appeal, 38 Pa. St. 65 ; Davis' Appeal, 34 Pa. St. 256. So, by making an adverse claim to the property, although it failed. Estate of Countryman, 151 Pa. St. 577.

She may also release her right, Tel. ford v. Boggs, 63 Ill. 498 ; e. g., by a deed of all her “right, title, and interest of dower in said estate," McFarland v. Baze, 24 Mo. 156 ; but the exemption will not be covered by an agreement to release her “dower and inheritance,” Mahaffy v. Mahaffy, 61 Ia. 679; or a release of which she might take as heir at law." Estate of Moore, 57 Cal. 446.

In like manner, the widow may by an ante-nuptial agreement bar her own interest, Tiernan 0. Binns, 92 Pa. St. 248 ; Shaffer v. Matthews, 77 Ind. 83 ; and it may be effectual even as to their children if the widow receives the full value of the exemption as a consideration for her agreement, Weaver v. Weaver, 109 Ill. 225 ; but not until payment is made, Phelps v. Phelps, 72 III. 545 ; Brenner v. Gauch, 85 III. 368; and the amendment may be restricted by such a contract, Estate of Collins, 66 Ia. 79; or the exemption changed into a distributee's rights to a child's part. McDearman 1. Martin, 38 Ark. 261.

Effect of separation-- Divorce. The right to exemption will be barred by a formal separation and release, Speidel's Appeal, 107 Pa. St. 18; Odiorne's Appeal, 54 Pa. St. 175; or a separation by mutual consent, Hettrick 0. Hettrick, 55 Pa. St. 290 ; or by her voluntary desertion. Estate of Ross, 6 Kulp (Pa.) 521 ; Estate of Byrne, Myrick's Prob. 1. On the other hand, her living with their children apart from her husband will not of itself defeat her claim to the exemption, Terry's Appeal,

Hill v.

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