Hufman's Appeal

Mr Justice Gordon delivered the opinion of the court, The Act of 14th April 1851 (Br. Purd. 416, Pamph. L. 60) provides, that the widow or children of any decedent may retain either real or personal property belonging to the estate of such decedent to the value of $300, and that it shall be the duty of the executor or administrator. of such decedent to have the said property appraised “in the same manner as provided in the act passed the 9th day of April in the year 1849, entitled, £ An Act to exempt property to the value of $300 from levy and sale on execution and distress for rent.’ ” Turning to the act thus re [331] ferred to (9th. April 1.849, Br. Purd. 631, Pamph. L. 22), we find that when the property levied upon consists of real estate of greater value than $300, and the debtor elects to retain the whole or any part of the sum exempted, in real estate, the appraisers are to determine whether it can be divided so as not to injure the whole; if their determination is affirmative, they are then required to set off a quantity in value sufficient t.o meet his claim, otherwise they are to make return that the property cannot be divided without injury to or spoiling the whole. In the latter event, upon return of the writ, with the proceedings thereon,' if the creditor proceeds to sell the property, the debtor may receive from the sheriff, out of the proceeds of sale, so much money as he may be entitled to under the exemption laws. But in order to receive the benefit of this act he must elect to retain real estate under its provisions; if he neglects so to do, he cannot come in upon the money raised by the sale. The act contemplates the setting apart for his use real estate, and not money arising from it, and it is only where, by the action of the appraisers, it is shown that the land cannot be divided, that he may be permitted to take money: Weaver’s Appeal, 6 Harris 307. The above doctrine is most emphatically reiterated in Marks’s Appeal, 10 Casey 36. In which case it is said by Thompson, J.: “ The law deals with his demand to have his exemption in land, and he could only take the money in lieu of land, if that amount in value could not be set off to him by the appraisers, -without injury to or spoiling the whole.” In Nyman’s Appeal, 21 P. F. Smith 447, the sheriff had, in his return to the fi. fa., as amended by leave of court, set forth, that “ at the time of the levy the defendant demanded the benefit of the law exempting $300 worth of property from levy and sale on execution, and claimed the same out of real estate, which consists of an entire tract, and cannot be divided, and he claimed that amount out of the proceeds when sold-.” It was held, however, on the authority of Marks’s Appeal, that, as there had been no appraisement, the debtor could not come in on the proceeds of the sheriff’s sale. So, in like manner, in Davis’s Appeal, 10 Casey 256, it was held, inter alia, that a widow, by neglecting to demand an appraisement, waived her right entirely to the $300 allowed her by the Act of 1851. In that case, it is said, that that act is to receive a construction similar to that given to the Act of 1849;. that the widow’s rights, under the statute, are sub modo only,, that she can obtain the property only in the manner directed by the statute. A similar ruling is found in Neff’s Appeal, 9 Harris 243, wherein it is said by Lewis, J., that the Act of 1851 was intended to give the widow and children what the debtor himself enjoyed in his lifetime under the Act of 1849; that both statutes had relation to the same subject, and differ only in designating the individuals intended to be protected; hence the rule of construction, that [332] statutes in pari materid are to be construed with reference to each other, must prevail in these exemption eases. Now the facts in the case in hand are, that Mrs. Margaret Hufman, widow of Jonathan Hufinan, deceased, and administratrix of his estate, claimed and had set apart to herself, the personal property of said estate, amounting to $99.25, and though, at the time of the appraisement of the personal property, she claimed the balance of the allowance out of the real estate, she neglected to have a proper appraisement thereof made, on the ground, as the auditor has found, that the realty consisted of but one tract of land, which was incapable of division. She now claims to have this deficit made up to her out of the fund produced by the sale of the land, and that as against creditors. Unfortunately for this claim it comes directly within the purview of the cases above cited and their rulings are fatal to it. She has not qualified herself, under the terms of the statute, to partake of this fund. An appraisement was the sine qua non of such qualification, and as that does not appear in any of the proceedings submitted to us, her claim must be treated as unfounded and nugatory. Decree affirmed.