Wiggins v. Mertins

COLEMAN, J. The abstract presents but two questions which require consideration. The first is, whether the exemption of one thousand dollars of personal property from administration and the payment of debts in favor of the widow and minor child or children of a decedent, as provided by the statute, is available against a creditor, the evidence of whose debt contains a waiver of exemptions as to personalty. The statute (sections 2545, 2546 of the Code) are plain and explicit in exempting personal property, to the amount of one thousand dollars, from administration and the payment of debts contracted after the 23d of April, 1873 A mere waiver of exemption does not create a lien upon property, nor vest the owner of such a debt with any interest in the ■ property of his debtor. There can be no doubt of the •constitutional power of the legislature to make such provisions, and the statute expressly declares that the exemption applies to all debts contracted after the time specified. We considered to some extent, the right of a person against whom there was a note with a waiver of exemptions as to the personalty, to convert his personal property which might have been subjected to the payment of his debt, into a homestead, and maintain the homestead under a claim of homestead exemption against his debt, in the case of Reeves & Co. v. Peterman, 109 Ala. 366. The next question is j whether when a decedent leaves two or more minor children, who are entitled to the benefit of the exemption, and one dies, or attain; its- majority before the exemptions are selected or set apart, as provided in the statute, the remainder are entitled to the entire one thousand dollars, or only to a proportionate share. The statute exempts the property from administration, and the payment of debts. The rights of a creditor are neither diminished nor enlarged by the number in whose favor the exemption may operate. If there is a widow or minor child or children, the exemption provision takes effect, and it operates in favor of those capable of taking at the time of the death of decedent. The setting apart of the property vested title specifically.; [170] In no event is the exempt property subject to debts of creditors — 3 Brick. Dig. 500, § 156. Affirmed.