White v. Swann

Riddick, J., (after stating the facts.) The question in this ease concerns the right of the children of Wheeler, acting by their grandfather and next friend, to claim for their father, in his absence, certain personal property belonging to him as exempt from execution. The statements in the affidavit attached to the schedule of property claimed as exempt show that Wheeler is a resident of the state and head of' a family. So it is clear that, if he had himself made this claim of exemption, it would have been sustained. But one of the chief objects of the homestead and exemption laws is to protect the family of the debtor from destitution and want. The exemption allowed the individual debtor is small, compared with that allowed him as the head of a family. Such laws are given a liberal construction, in order, as far as possible, to carry into effect the beneficent purpose for which they are intended. For this reason it has been often held that the desertion of the family by the husband, still leaving them occupying the homestead, is not an abandoment nf the homestead by him; the presumption in such eases being that he is but temporarily absent, and intends ultimately to return to his home and family. Hollis v. State, 59 Ark. 211; Moore v. Dunning, 81 Am. Dec. 301. And so in this case, nothing being shown to the contrary, we must presume that Wheeler, in leaviug his home and family, did not intend permanently to abandon them. The presumption is that he was only temporarily absent. But when the head of the family, having the right to claim exemptions, is absent, it has been decided that not only his wife, but a son or daughter, may interpose and claim the exemption for him. Any person may do this who is authorized to take charge of and protect the property and rights of the debtor during his temporary absence. And this authority need not be expressly given, but may be presumed from circumstances. Wilson v. McElroy, 32 Pa. St. 82; Waugh v. Burket, 3 Grant’s Cases, 319; Regan v. Zeeb, 28 Ohio St. 483; Thompson on Homesteads, § 829; Waples on Homesteads, p. 877. Now, in this case the debtor left his household furniture and other personal property in the possession of his children; intending, no doubt, that it should be preserved and used for their benefit. They being young, their grand-father took charge of them, and, acting for them and the absent debtor, claimed the property as exempt from execution. Under these circumstances, with nothing to show to the contrary, we think it should be presumed that the debtor consented to this action taken for the benefit of himself and children by one who had rightfully assumed control of them in his absence. To hold otherwise would be to say that, if the absconding debtor had left a wife oran adult son or daughter, the law would allow the exemption to be claimed, but would refuse its protection when the deserted family consisted only of the young and helpless. Such a construction of the statute would overlook entirely the main purpose of the exemption law; for, although the exemption is allowed the debtor, it is given to him in part _ at least foi the protection of his family, who need it all the more when deserted by him during early infancy. The claim of exemption, being made in behalf of the children, and not for the debtor as head of the family, was soipewhat informal; but, as before stated the affidavit attached to the schedule states all facts required to show that the debtor was entitled to the exemption. As no special objection was made to the form, the court will consider the substance rather than the form of the proceeding. .• A majority of the judges are of the opinion that this case comes within the scope and purpose of the exemption law, and think that the exemption was properly allowed. Judgment affirmed.