Dixon v. Aldrich

Elliott, J. The question presented by this record is this: Can a widow secure the five hundred dollars allowed her by statute where the property of her deceased husband is held under a levy made by the sheriff before the husband’s death ? This question must be answered in the affirmative. The levy did not change the title to the property, that still remained in the husband. He was the owner notwithstanding the levy, and he might have successfully claimed an amount equal in value to six hundred dollars as exempt from execution. He had not parted with the title, nor surrendered ownership, so that the decisions in such cases as Recker v. Kilgore, 62 Ind. 10, are not of controlling influence. The decision in Quakenbush v. Taylor, 86 Ind. 270, is not unfavorable to the widow’s claim, although it is probable that some expressions in the opinion seem to be against it; but such expressions are not authoritative; especially do such expressions lack authority when, as is true of the case referred to, there are inconsistent statements in the opinion. The statute which gives the widow the right to five hundred dollars is clear and comprehensive, and it expresses the intention of the Legislature to give her that sum out of property of which her husband died the owner, and which he might, if living, have exempted from sale on ex 297 ecution. Section 2269, R. S. 1881. In the statute relating to executions is the following section : “ The death of a defendant, after the execution is placed in the hands of the sheriff to be executed, shall not affect his proceedings thereon, except that the amount of property allowed absolutely to the widow of the decedent shall be exempt from levy and sale under such execution.” Section 790, R. S. 1881. This provision must be read in connection with that which secures to the widow five hundred dollars; and, when thus read, it forbids a sale although there may have been a levy in the lifetime of the husband. It seems to us that it is impossible to avoid the conclusion that the Legislature meant to secure to the widow five hundred dollars in all cases where the husband has not, in his lifetime, by a voluntary contract divested himself of ownership, or so encumbered the title as to destroy the right of exemption. Filed Feb. 25, 1891. Judgment affirmed.