Kelly v. Garrett , 67 Ala. 304 ( 1880 )

SOMERVILLE, J.

— This is a proceeding before the Probate Court, originating in a petition filed by the appellee, as executor of the last will and testament of William Garrett, deceased, seeking to have a homestead and other property set apart as exempt for the benefit of two minor heirs, the children of the testator. The application was granted, and the exemptions allowed under the provisions of the act of April 23, 1873. — Session Acts 1872-73, pp. 64-69.

The ease is brought here on certain exceptions taken to the report of the commissioners, who were appointed by the probate judge to make the selection and valuation of the exempted property. These exceptions were disallowed by the court, and an appeal was taken from the decree by the appellant, who is the pérsonal representative of a creditor of the testator’s estate. In eases of this character, the statute allows written 'exceptions to the allowance of the claim, to be filed by “ the personal representative ov any person in adverse interest,” but requires this to be done within thirty days after the expiration of the sixty days” given the commissioners for making return of their report. — Code, (1876), § 2841.

The appellant, as executor, was a creditor of the estate of William Garrett, and was, therefore, within the meaning of the statute, “a person in adverse interest.” As said by this court in Smith v. Phillips, Brickell, C. J., “ the whole law of administration is founded on% the theory that they (creditors) have an interest, and the primary interest, in the estate.” Ib. 54 Ala. 8. And the method and remedy resorted to for ascertaining the exemptions were permissible and proper under the provisions of § 2844 of the Code, in as much as the proceedings were commenced on October 8, 1877, after the latter section was amended by the act of February 9th, 1.877.

The record shows, that, on the same day the petition was filed, commissioners were appointed to set apart the exemptions, who made their report on October 18th, 1877 — ten days thereafter. The probate judge confirmed the report immediately, on the same day it was made. This action was premature and unauthorized by law. It does not appear to have been made at a regular, or special, adjourned term, and it was not such an order or proceeding as is authorized to be had, or granted at any other time, in contemplation of section 701 of the present Code, (1876).— Arrington et al. v. Roach, Adm’r, 42 Ala. 155.

It was otherwise objectionable on the ground, that the personal representative and creditors' of the estate are allowed ninety days within which to file exceptions, for the purpose of contesting the claim before the probate court. The appellant was debarred of this right, by this improvident proceeding, which ought to have been vacated on the application of the injured party. — Code (1876), § 2841; Curtis v. Williams, 33 Ala. 570.

The probate court, furthermore, had no jurisdiction to try the exceptions filed to the allotment of the homestead. The statute expressly declares that “the issue formed therein shall be certified by the probate court to the circuit court of the county, and shall be therein tried at the next term thereof, and the judgment of such circuit court therein shall be certified back to the probate court for further proceedings, &c.” Code (1876), § 2851. Section 2838 -of the Code inhibits the exercise of such jurisdiction in the following peremptory Words : “ In no case shall the trial of the right of homestead be had before & judge of probate or justice of the peace.”

The proceedings of the probate court in regard to the homestead, being coram non judice, are absolutely void.

There is still another objection to the decree and proceedings of the probate court, which must prove fatal to their legality.

Section 2844 of the Code (1876) provides, that, in all eases of debts or demands, contracted at any time before the State constitution of 1868 became operative, an exemption shall be allowed, the quantum of which shall be determined by the statute law which was of force when such debts or demands■ toas contracted.”

The claim represented by appellant in this case was contracted December 17th, 1867.

The above statute is merely declarative of what the law would otherwise have been, as since decided by this court in Nelson v. McCrary et al. 60 Ala. 301, and Fearne v. Ward, Adm’r, 65 Ala. 33.

These cases hold, in conformity to the doctrine declared by the Supreme Court of the United States, in Gunn v. Barry, 15 Wall. 610, that the right to a homestead exemption, as against the claim, Of creditors, is to be determined by the law which was of force when the debt was contracted, and not by a subsequent law, which was of force when the property was acquired; and that a subsequent statute, when enlarging homestead exemptions, cannot operate on existing contracts without impairing their obligation. In other words, all contracts have reference to exemption laws, existing and in force at the date or time at which they are entered into by the contracting parties. The probate court erred in ignoring this principle. It was proper to pursue the method and remedies authorized by the present Code in ascertaining and determining the exemptions claimed by the petitioner. But the quantum of the exemptions, both of real and personal property, if any are allowable at all in this case, ought to have been determined by the laws in force on the date of the claim or debt, not by the act of April 23, 1873, as was improperly done in this case by the court below.

It is insisted by appellant that Phineas Garrett, one of the minors, who was a beneficiary of this application, was a non-resident of the State, and on this ground not entitled to any exemption allowed by statute. He had, prior to, his father’s death, been sent to Rhode Island, where he was attending a free school in that State. It does not appear that he left Alabama for any other purpose, or that he had any intention of permanently remaining absent.

During the life of the father, his domicil was also that of the minor. It is frequently said that one’s original domicil “ clings closely,” and the law does not readily presume its change, certainly not when absence is temporary, and is attended with animus revertendi.

In Troy’s Election Case,-71 Penn. State Rep. 302, it was properly held, that a student, who had gone to a literary institution for the purpose of receiving an education, and intending to leave after graduation, does not lose his original domicil. The exception based on this ground was without merit.

For the above errors, the decree of the Probate Court is reversed, and the cause is hereby remanded.