Henderson's Adm'r v. Tucker , 70 Ala. 381 ( 1881 )

STONE, J.

The right of exemption claimed in this case is controlled by the act approved April 23d, 1873.—Pamph. Acts,, 64; Tucker v. Henderson, 63 Ala. 280. The first section of that statute provides, “that the personal property of any resident of this State, to the value of one thousand dollars, to be selected by such resident, shall be exempted from levy and sale under execution, or other process for the collection of debt.” Section 3 declares, that “ personal property to the value of one thousand dollars, of any resident of this State, after his death, shall be exempt from the payment of debts; provided, such decedent leaves surviving him a widow or child.” Section 13: “ That whenever an executor or administrator makes out an inventory of the estate of any decedent, who left surviving him a widow or minor child, it shall be his duty to permit said widow, or the guardian of such child or children, if there be no widow, or she does not act, to select the property exempt from administration for the payment of debts; and if neither the widow nor guardian make such selection, then three disinterested persons, to be selected by the judge of probate, must make such selection, and set apart the same; and the same must be appraised by the appraiser, and the appraisement thereof returned to the Probate Court, with the appraisement of the residue of the estate,” &c. We think the proper construction of this statute requires us to hold, that section 13 explains what is meant by section 3, when it exempts a thousand dollars of personal property, provided the decedent leaves a surviving widow or child. To. come within .the statute, such surviving child must be a minor.

"We have uniformly held, in construing similar statutory provisions, that exemption is a privilege to be claimed; and if not claimed before a sale is made under legal process, it is treated as abandoned.—Gresham v. Walker, 10 Ala. 370; Simpson v. Simpson, 30 Ala. 225; Bell v. Davis, 42 Ala. 460; Martin v. Lile, 63 Ala. 406. So, under this statute, no active dfity is cast on the administrator, which requires him to take the initiative in setting apart the thousand dollars of exempt personal property. He must permit the widow, or, if she does not act, tlie guardian of the infant cliild or children, to make tbe selection. If neither acts, then three disinterested persons, to be selected by the judge of probate, must make the selection. No duty is imposed npon the administrator, until the selection is made in one of the modes pointed out above. We hold that, inasmuch as no selection was made, or claim preferred, until after the administrator had obtained an order to sell the property, and sold it for the purposes of administration, the claim of exemption must be regarded as waived.

Affirmed.