Turner's Adm'r v. Whitten

A. J. WALKER, C. J. The most important question of this case is, whether the child, who composed the family of a widow, is, upon the death of the latter, entitled to the benefit of the exemption provided by section 1738 of the Code and the statutes amending it. In the construction of statutes, we are permitted, when there is any doubt or ambiguity, to seek the intention of the legislature, by inquiring after the mischief and defect to be remedied, and the reason of the law. — Huffman v. State, 29 Ala. 40; Sedgwick on Statutory and Constitutional Law, pp. 231-236. “The object of the legislature, in the enactment of the” law in question, “doubtless was to provide the family of the deceased with the present means of subsistence and comfort, by allowing them to retain, free from account on the part of the executor or administrator, such articles as were indispensablefortheirmaintenance and convenience.” — Carter v. Hinkle, 13 Ala. 529. No conceivable reason for a discrimination against the children of a deceased widow can be found. Why should the children of a deceased man have the benefit of the exemption, while it is denied to the children of a deceased widow ? The section of the Code uses the masculine pronoun; but, under section 1 of the Code, the masculine includes the feminine. The act of 30th January, 1860, (Pamphlet Acts, p. 18,) amends section 1738 of the Code, by giving the exemption operation against “heirs, distributees, or legatees.’’ It uses the word “man”; but the fact that it was framed in reference to a section of the Code, and with a view to its amendment, affords a strong pursuasive argument, that its language was adopted in reference to the provision which declares that the masculine includes the feminine. fIt is obviously used as a generic term, and includes females as well as males. [533] 2. We entertain no doubt that, under its general grant of jurisdiction “for orphans’ business,” the probate court had the authority which it exercised in this case. — Mims v. Sturdevant, 23 Ala. 664; S. C., 36 Ala. 636; Mims’ Adm’r v. Mims, 39 Ala. 716; Dobbs v. Cockerham, 2 Porter, 328; Merrill v. Jones, 8 Porter, 557. Affirmed.