Smith v. . McDonald

Ashe, J. (after stating the facts). 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, 66 N. C., 167, it is held, that the personal property exemption provided by Art. X of the Constitution, and laws passed pursuant thereto, exists only during the life of the homesteader, and after his death passes to his personal representatives, to be disposed of in a due course of administration. 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, *166 leaving a widow, but no children, the same shall be exempt from the debts of her husband, and the rents and profits thereof shall enure 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 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, 66 N. C., 197, when Pearson, C. J., who delivered the opinion of the Court, held that, “ the manifest purpose of the act of 1868-9, Chap. 137, (The Code, §514), is to prevent the widow and children from being prejudiced by the omission of one entitled to a homestead to cause it to be laid off in his lifetime. It cannot be supposed that the effect of the statute is to go beyond the Constitution, when its professed object was to carry into effect its provisions.” 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, 72 N. C., 106, which is a case directly in point and a decision of the question under consideration. That was a case where the widow, after the death of her husband, no home- , stead having been allotted to him in his lifetime, filed her petition before a justice of the peace to have a homestead laid o *167 and allotted to her in the land of her deceased husband. The creditors had themselves made parties defendant before the justice, and from the judgment therein rendered in favor of the plaintiff, appealed to the Superior Court, where the judgment of the justice was sustained, and upon án appeal to this Court, the judgment of the Superior Court was affirmed. 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 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.