Chisolm v. Chisolm's Executors

JUDGE, J. An act of the legislature, passed December 9, 1864, provides, “that the act approved January 30, 1860, entitled ‘An act to construe section 1738 of the Code,’ shall be held and construed to apply to real estate, only in cases where the estate of the decedent is insolvent, and it becomes necessary to sell the real estate for the payment of 329 debts.” The act of 1864 provides further, “ that in cases where the widow, or widow and children, are entitled to five hundred dollars worth of land, under said section, the judge of the probate court may appoint three appraisers, who shall, after being duly sworn, proceed to lay off and set apart said land in accordance with said section, and make due return thereof, in a reasonable time, to said court; and if the real estate can not be divided, so as to set apart five hundred dollars worth thereof, under said section, and the commissioners shall so report, the probate court shall order, that the executor, or administrator of the estate, shall sell the real estate, and pay to the widow, or widow and children, or child, or children, five hundred dollars of the proceeds of sale.”—Session Acts, 1864, p. 93. The benefits intended to be conferred upon the widow of a decedent, by the legislation above cited, are not limited, as was supposed by the court below, to cases in which the widow may assert no claim to dower in the realty of the estate. Irrespective of the widow’s dower, it was intended, in the event the estate should be insolvent, and a sale of the real estate become necessary for the payment of debts, to secure to the family of the deceased — “ the widow, or widow and children, or child, or children” — a permanent homestead of the value of five hundred dollars, if such could be set apart to them from the realty; and if it could not, to secure its equivalent in money, to be realized from a sale of the realty, for their use and benefit. It results that the court below took a wrong view of the question involved, and that the decree must be reversed, and the cause remanded.