Gamble v. . Watterson

Smith, C. J. The necessity of the sale is apparent, afid Upon the estimates the proceeds thereof will be insufficient to pay the liabilities of the intestate which are paramount to the right of exemption. It was not therefore at all necessary to anticipate a question that may arise in the probate court upon the settlement of the administration and the distribution of the ftlnd among the creditors, and which was not then before the court. It is true, if the application had been for leave to sell the land, subject to the homestead encumbrance, for the payment of debts subordinate to that right, it would have been refused under the law as declared in Hinsdale v. Williams, 75 N. C., 430, andiit is equally clear that according to the decision of the supreme court of the United States in Edwards v. Kearzey, 96 U. S., 595, overruling previous adjudications in this court, the land is not exempt from liability for debts contracted- before- the constitution conferring the right of *575 homestead Went into operation. But When by a sale the homestead is destroyed and all benefit of the exemption lost to those for Whom it Was intended, it is quite' a different thing to appropriate the proceeds to the satisfaction of one class of debts, and to exclude the other from all participation therein: and it may be (we do Hot now express an opinion upon the point) that the date of the contracting of the debt becomes immaterial, and the fund is to be applied ■under the general law regulating administrations of insolvent estates. There is no error in granting the license to sell, and'the question as to the appropriation of the moneys in the hands of the plaintiffs belongs to the probate judge first to determine, subject to review in the superior as an appellate court. But the attempted restriction put upon the license, when the whole land must be sold, is unauthorized and erroneous, and we so declare in order that it may not obstrüct the decision of the court upon the point, should it hereafter arise, lu this view only can the appeal itself be entertained. This will be certified to the end that further proceedings be had in conformity With the law as declared in this opinion, for whictnpurpose so much of the order as restricts the license is reversed. Error. ' . Reversed.