Grafton v. Smith , 66 Miss. 408 ( 1889 )

Arnold, C. J.,

delivered the opinion of the court.

The demurrer to the cross bill should have been overruled. The personal property exempt from execution and attachment, was no part of the estate of J. A. Smith, subject to administration. Whitley v. Stephenson, 38 Miss. 113. When the administrator took charge of it, he acted without authority of law ; when he delivered it and the money received from its sale, to the widow, he did what he should have done.

Under the act of 1865, the exempt property descended, on the death of the husband, to his widow as the head of the family, during her widowhood, for the use and benefit of herself and children, and in the event of her marriage or death, it descended like other property under the laws of the state. Acts 1865, 138. As against the administrator of the husband, the widow, as head of the family, was clearly entitled, under that act, to the' exempt property, and the proceeds derived from its sale, when it was unlawfully taken possession of and sold by the administrator. If he had withheld either from the widow, she could have compelled him to have delivered it to her. Stephenson v. Osborne, 41 Miss. 119. He and the sureties on his bond should not be held liable for doing what he would have been required by law, to do.

The case is not controlled by Hardin v. Osborne, 43 Miss. 532, where the contest was between the widow and adult children living .apart from her, over a fund in court, derived from a sale of exempt property.

The fact that an appraisement of the personal property had been made and approved, and that the appraisers failed to set apart to the widow as head of the family, the exempt property, did not affect her right to the same. Her right to such property vested by operation of law, and was not dependent, in any manner, on the action of the appraisers, or the want of action on their part. Whitley v. Stephenson, supra; Wally v. Wally, 41 Miss. 657.

Holliday v. Holland, 41 Miss. 528, is not to the contrary. It ■decides nothing, except that when a proceeding has been commenced by the widow against the administrator of her deceased husband, to have set apart the personalty exempt from execution and attachment, etc., on the death of the administrator, the proceeding should not be revived against his representative, but against the administrator de bonis non of the husband.

Reversed: demurrer to cross bill overruled, and leave to appellee to ■answer within thirty days after the filing of the mandate herein, in the lower court.