Hunter v. Law , 68 Ala. 365 ( 1880 )

BRIOKELL, C. ■ J.

The fund in the hands of the administrator was derived entirely from.the sale of the lands of the intestate. The sale was made, not for the payment of debts, but because otherwise there could not have been a fair and equitable division of the lands. This fund is not personal assets, and is not the subject of distribution, in the proper, technical sense of -that term, which refers only to a division of personal assets among the next of kin. taking under the statute of distributions. The fund stands in the place of, and is the representative of the lands, passing to the heirs, as the lands would have descended, if they had not been sold. If one of the heirs had died leaving a widow, she would be dowable of the fund, and there is no event in which the widow of the intestate from whom the lands descended, can participate in the division of the fund. Williamson v. Mason, 23 Ala. 488; Chaney v. Chaney, 38 Ala. 35.

The statute carefully distinguishes the exemption of lands to a widow and minor children, from the exemption of personal property to them. The homestead is exempt to them during the life of the widow and the minority of the children. From the estate of the husband and father this particular estate is carved out, continuing until the children attain majority and the widow shall die. Upon the expiration of the particular estate, the land reverts, by operation of law, to the heirs of the deceased husband and father. There is aD exemption of specified personal property to the widow and minor children, free' from the claims of creditors, or distributees.—Code of 1876, § 2824. A further exemption is made them of personal property of the value of one thousand dollars, and the mode of selecting and separating it from other personal property is prescribed. This is taken free from the claims of creditors, but if the estate is solvent, on final settlement, it is to be accounted for as part of the distributive share of the widow and the minor children, or as a part of their legacy, if there is a will disposing of the entire estate. Code of 1876, § 2825. The absolute title, the entire interest in each exemption of personal property vests in the widow and minor children. There is not, as there is of the homestead, the carving out of a particular estate or limited interest, upon, the expiration of which the property will revert. The exemption of personal property last referred to, is in the nature of an advancement when the estate is solvent. In anticipation of the shares of the personal assets distributable to the widow and minor children on final settlement, they take the exemption. On that settlement, they must account for it, as part of their distributive shares. It is the distributive shares of the personal assets only, of which it must be accounted as a part. It is in these assets only the widow can have a share, from which she could be compelled to account. And, as we have seen, as to the exemption of the homestead, there is an entirely different estate and interest created. All the words of the statute are appropriate, when applied to a distribution of personal assets, and can only be applied to real assets by giving them a loose, inappropriate significance. The application of them to. a division of real assets must always enable the widow to escape from liability' to account for Her share, while a liability would be fastened upon the minor children. When all the words of the statute are taken in connection, it is plain, the widow, or minor children are under liability to account to their co-distributees, because of the exemption of the personal assets they have received, from the personal assets only, and not from real assets. If the lands had not been sold, — if they had remained, decending to the heirs, — it would not have been suggested, that the estate of the minor children could be charged by any proceeding, in any forum, because there was a deficiency of personal assets, to equalize other distributees with them, when an account was taken of the personal assets only. The fund in the hands of the administrator stands in the place of the land, and the court of probate properly divided it as the lands would have been divided. There is no warrant in the statute, which would have justified any other division. And any other division would result in relieving'the widow from all liability to account for the advancement of the personal property exempt, while the minor children would be subjected to the liability. The statute regulates and defines exemptions, and they must be taken and held as the statute appoints. If inequalities arise between those among whom equality may appear to be mere equity, the statute for its own purposes creates them, and courts have no power to relieve against them, if they are, in fact, inequitable.

Affirmed.'