Little v. McPherson

OLOPTON, J. — Section 2825 of Code exempts to the widow, there being no minor child, personal property of the decedent to the value of one thousand dollars. It is made the duty of the administrator t.o permit the widow to select the property exempt from administration for the payment of debts ; and, if she makes no selection, the judge of probate must appoint three disinterested persons to make the selection, and set apart the property. The statute imposes no active duty on the administrator, in respect to making the selection, or having it made. The statute confers on the widow, as to the kind of personal property to be exempt, an unconditional and unrestricted right of selection. She may select money, if on hand at the death of her husband, notes, or other dioses in action, or any other personal property which he owned at that time. The only statutory limitation is, that the property selected shall not exceed one thousand dollars in value. — Darden v. Reese, 62 Ala. 311. The statute does not vest any title in the widow, until specific property is selected in one of the statutory modes. Tucker v. Henderson, 63 Ala. 280. Notwithstanding the right to the exemption vests immediately on the death of the husband, and is as absolute and unqualified as the right of selection, it has been uniformly held, that the exemption must be claimed, or it is waived. — Henderson v. [556] Tucker, 70 Ala. 381. The material question in the present case is, within wha't time must it be claimed, to avoid a waiver ? In the case of the exemption from sale under legal process, the right is not considered as waived, if the claim is iuterposed before a sale of the property.- — Simpson v. Simpson, 30 Ala. 225. After death, if no claim is asserted before the property is sold under an order of court, or before it is subjected to administration for the payment of debts, or for distribution, the exemption is held to have been waived. — Mitchum & Smith v. Moore, 73 Ala. 542. The waiver is founded on the ground, that in such case there is no subject-matter to which it can attach. The waiver, hovever, extends only to the.property which has been sold, or subjected to administration in the payment of debts, or by distribution. The selection merely specifies and sets apart the property. So long as there remains any unadministered —a subject-matter to which the exemption can attach — the claim may be interposed, and the selection made. To constitute a waiver, there must concur tire failure of the widow to select, and the failure of the judge of probate to appoint three disinterested persons to make the selection. This concurrent failure is not complete, so as to operate a waiver of the entire right to exemption, while there is property in the hands of the administrator, that may be selected. Neither can the personal representative defeat the right to exemption, by converting the choses in action into money, or by using the assets in paying debts, before the expiration of the time allowed creditors to present their claims, or before the period when judgments may be rendered against him in his representative capacity. The widow is not bound to presume that he will pay debts before the time allowed him to ascertain the condition of the estate expires. The uncontradicted evidence of the administrator shows, that the funds of the estate and of the partnership were commingled with his own, and were used indiscriminately in the management of his business generally ; and that he paid the debts of the estate with his own funds, except about fifty dollars. The record further shows, that the surviving partner was appointed administrator in April, 1882 ; that there had been no previous administration ; and that the debts were paid before the expiration of eighteen months from the grant of letters. During the continuance of the partnership, the legal title to the personal assets is in the firm ; and on its dissolution by the death of one partner, it is cast on the surviving partner. The decedent had no claim or right to any specific part of the partnership effects, until the debts and liabilities were discharged. His share or right was to the partnership assets which remained, after the liabilities were satisfied. The partnership business [557] was not settled, and the amount due by the surviving partner was not ascertained, until after persons were appointed by the judge of probate to make the selection. In Loeb & Weil v. Richardson, 74 Ala. 312, where the widow claimed the crops as exempt, on which Loeb & Weil had a lien for advances, and also for supplies furnished to complete and gather the crops, one of them being the administrator, it is said : “If, after satisfying these claims, these is any thing left, the widow’s claim of exemption is next in order. At that stage, she has a clear right to make her selection of the undisposed of residuum.” "Until there was a settlement of the partnership, and the residuum ascertained, there was no part of the partnership property which the widow could claim and select as exempt. She was not informed how much the decedent’s share would be, and she was not compelled to select it at a valuation dependent on the result of a settlement. The share of the decedent in the partnership could not have been used in the payment of debts of the estate, as the debts were paid long before the settlement was made. When a settlement was had, and the balance ascertained, she, at that time, had the right to claim and select her husband’s share in the residuum,. When the estate is solvent, the exemption is in the nature of an advancement of so much of her distributive share of the personal property, for which she must account on final settlement. She has a right to the exemption, and if it exceeds her share of the personal assets, she is excluded from further participation in the distribution ; but is not required to refund any part of the exemption. — Hunter v. Low, 68 Ala. 365. The final settlement, on which she must account, is the final settlement of the estate, and not of a resigned or removed administrator, where the administration is continued by the appointment of a successor. Reversed and remanded.