Hodo v. Johnson & Heath

Brown, C. J. 1. This Court held, during this .term, in the case of Buff & Company vs., William M. Johnson, that the minor children of a deceased person are entitled as against creditors to a Homestead out of the estate of their deceased father, and we are unable to see why this case does not fall within the principle there decided. Section 12 of the Act of 3d October, 1868, declares that “ said property so set apart shall be for the use of the wife, or widow and children, during her life or widowhood, and at her death or intermarriage to be equally divided,” etc. This shows clearly that the widow, as well as the minor [441] children, is a beneficiary under this Act; and it follows that the widow may apply and have the homestead laid off out of the estate of her deceased husband, for the benefit of herself and the minor children of the deceased. It is objected, that at the death of the husband the property does not pass to the widow and minor children, but to the representatives of the estate, for the benefit of creditors, and after they are satisfied, to the heirs generally, and that no family is entitled to a homestead out of the property which does not belong to them.' The reply is/that the Constitution gives them a lien or claim upon it, in the lifetime of the husband and father, higher than any claim of any creditor, except such as fall within the exceptions contained in the Constitution, and higher than the claim of the father or husband himself in a contest between him and the family. Section IS of the Act above mentioned provides, in case any husband shall refuse to apply for said exemption, his wife, or any person acting as her next friend, may do the same, and it shall be as binding as if done by the husband. Should any trustee or guardian of a famility of minor children fail to apply for said exemption, the Ordinary may, upon application of any next friend for the minors, allow him or her to act in lieu of such trustee or guardian, and this shall be as binding as if done by said guardian or .trustee. Under this section the husband can not defeat the exemption by failure or refusal to apply for it, and on the application of the wife or next friend, it will be laid off and allowed nptwithgtanding his dissent. If, then, the husband' cannot defeat the homestead in his'lifetime, in case the wife applies for it, how does his death defeat it? It is true his estate descends at his death to his legal representatives, but it descends as he held it, subject to the claim of the family for the homestead, and the creditors have no more right to object in the one case than in the other. It could not have been the intention of the Legislature that this humane provision in favor of the wife and minor children, which avails them while the husband and father is in life as their natural guardian and protector, shall be swept away by [442] his death, and they be left homeless without his assistance. There are much stronger reasons why they should have a homestead out of his estate when they are deprived of his protecting care than out of his property while he is in life, to a'id and comfort them. 2. It is the right of the creditor to appear at the proper time, and object to the schedule filed by the applicant, for any of the causes specified in the statute. But such objections must be in writing, and must plainly and distinctly set forth the grounds of objection, so that they may be understood by the applicant, and by the Court. It is the right of the applicant to ameud the schedule, or the plat of the land,after the survey, so as to obviate the objections, which, if done, prevents the appointment of appraisers by the Ordinary. To be able to determine whether he or she will make the amendment, or abide the judgment of the Court upon the objections made, the applicant has a right to be distinctly informed of the nature of the objections. The simple objection that the amount allowed is too large is not sufficient. It should state how much too large, qr in what it is erroneous or unjust. As we have heretofore held, a creditor whose debt falls within any of the exceptions in the Constitution and Homestead Act, as that it is for the purchase-money of the property claimed as a homestead, or the like, is not bound to pay any attention to the proceeding before-the Court to lay off the homestead. As the property is not exempt from the payment of his debt, the fact that the homestead has been laid off in no way prejudices his rights. And if his debt be in judgment, he may have it levied upon the property as well after the homestead has been laid off and set apart as before the proceeding was commenced. Judgment reversed. McCay, J., concurred, but wrote out no opinion.