Succession of Norton on the Opposition of Lum

IrsiiEV, J. Two of the items of the account and tableau of distribution filed by the administrator of the succession of John Cooper Norton, deceased, were opposed: 1. The item of three hundred dollars allowed to James Timony, as the balance of a note for two thousand dollars, subscribed by the deceased, and secured by a mortgage on certain real estate found in the succession.. 2. The item of one thousand dollars allowed to the widow and children of the deceased, John Cooper Norton, as a homestead claim. Both oppositions were dismissed, and the opponent, J. A. Lum, has. taken the present appeal from the judgment of dismissal. The grounds of opposition to the item of three hundred dollars allowed to Timony, are: first, that this claim is not due; and, second, that if it were due, the mortgage given to secure the payment of it has been extinguished. By reference to the act of mortgage we find no mention made - of any indebtedness by the mortgagor to the mortgagee; but as the mortgage was given to the mortgagee expressly to secure the payment of the note of two thousand dollars, described in the act, we must infer that the principal debt was then due. It was stipulated in the act, that the note was to be immediately discounted by the mortgagee; but we infer from this nothing more than that the mortgagee would put it into the market • for discount, in other words, that he was not expected to hold it himself till its maturity. Timony himself, examined as a witness, says: “that he claims the three hundred. dollars for lent money.” He further says: “ Norton often-paid accounts on said note to him, for which he gave receipts, and that the last amount paid thereon was four hundred and twenty-five dollars. ” In the first part of his examination, the witness says: “Since it (the ■ note) was made and given to witness, part of the time, Norton had it in [39] his possession. TMs, unexplained, would certainly have extinguished the mortgage (2214, 3252; Hill v. Hill, 4 Rob. 416); but, in a subsequent part of his testimony he says, that the reason “Norton had the noto in Ms possession for some time, was because, after it was executed, Norton fell sick, and witness did not see him for some time after, when he gave Mm the note, and that Norton never had possession of it afterwards. This possession of the note by Norton was not a possession in his own right, but for Timony; and as the debt was not thereby extinguished, the vitality of the mortgage to secure it was not impaired. Any disposition of the note made by Timony to assist the widow of the deceased has no bearing whatever on the case. If the able counsel who examined Timony could not elicit from him stronger proof that he was not the owner of the note, it was, we presume, because he found the task a hopeless one.- We think that item was properly allowed. The opposition to the second item must be sustained; for, admitting that the widow and children of John Cooper Norton were left in necessitous circumstances, and did not, in their own right, possess one thousand dollars, they were, at the time of Norton’s death, domiciliated in the látate of Mississippi; and it was at the moment of Norton’s death that their right, under the statute (if any they had, which cannot be conceded to them), would have vested. See the case of Gimble v. Goode, 13 An. 352. The District Judge erred in supposing that “it is not the date of the death, but of the settlement of the succession, by which the question must be governed;” and the fact that Mrs. Nortion did, after her husband’s death, fix her residence in Louisiana, does not, unfortunately for her, vest in her any right to claim the bounty. Judge Lea thus expresses the opinion of the Court, in the case of Stewart v. His Creditors, 12 A. 91, and we concur fully in the applicability of the doctrine therein announced to the present case: “It is the duty of the State to protect its own widows and orphans, and those of its own people who are laboring under legal incapacities. Upon what principle of public policy, or even of common justice, could the rights of mortgage creditors in tMs State, be postponed to the claims of an interdicted person residing in France upon the property of his curator situated in this State, for an indebtedness growing out of an administration in that country ?” We are unanimously of the opinion that Mrs. Norton and her children cannot sustain their claim under the homestead law. The judgment of the lower Court is sustained, so far as it rejects the opposition to the claim of James Timony, and reversed, so far as it sustains the claim of the widow and children of the deceased John Cooper Norton. It is therefore ordered, adjudged and decreed, that the judgment on the opposition of J. A. Lum to the claim of James Timony be affirmed, at the costs of the appellant; and that the judgment on the opposition of J. A. Lum to the claim of the widow and children of John Cooper [40] Norton, under the homestead law, be annulled, avoided and reversed, and that the opposition thereto be sustained, at the cost of the succession.