Roff, Sims & Co. v. Johnson

McCay, J.

1. The important question in this case is whether the “family of minor children” of a deceased parent is entitled, under the Constitution and laws of this State, to the “homestead and exemption” out of the estate of the parent. That the Constitution means this there can be hardly a doubt. “A family of minor children” can have no debts of their own. They cap contract none except for necessaries. If they have property, the law allows only the income of it to be expended, and it seems absurd to suppose it was the intention of the Convention to provide that the “homestead” of a' “family of minor children” was to be laid off out of the property of those minor children. Clearly, to our mind, what was meant is a family of orphan minor children, a family who have no father; and it was intended that this family should have a homestead out of the property of the father. It was intended to provide that the “family” should have, after the parent’s death, that which it was entitled to in his lifetime. Had it been applied for and laid off during the life of the parent, it would have rested in the family., When the parent died his estate was burdened with this liability. But it is asked if one is entitled to a homestead in any property but his own ? This question is based on a mistaken conception of our “homestead” law. The “homestead” in Georgia is not a simple “exemption.” The whole theory of the law is based upon the duty, the legal obligation of the parent, to support and maintain his wife and minor children. He has the right to their labor, and he not only owes them a support by the laws of morality and nature, but by the laws of the land: Rev. Code, sec. 1747and sec. 1783.

Why should not the State, if it sees fit, provide this mode of forcing the husband or “head” to perform his legal obligation ? Especially, as if the duty is not performed, the State would itself be driven to perform it. It is not true, then, that our homestead law is an exemption of one’s property from levy and sale for his own benefit, and the question is not a pertinent one that asks, if one can have a homestead out of any property but his own ? The homestead stands in Georgia on the footing of the year’s support. It is a charge on a man’s estate, in favor of his family during his life, and it follows it at his death.

2. But we are of opinion that the family of a deceased parent takes the “homestead” subject to the other provision made for their support. These several Acts are to be construed together. Their common purpose is to provide for the family of a debtor, whose estate is about to be swept away for the payment of his debts, and we think it is doing no violence to the intentions of the Legislature to hold that the family of a deceased debtor cannot take them all. The dower to the widow, the year’s support and the homestead, have all a common object, and until the Legislature has more distinctly spoken, we are of opinion that they must choose between them. In favor of the policy evident in these various liens, we assume that the homestead, which is the last provision enacted, was expected to be the largest and most complete, and we hold the family entitled to that. But it is subject to the.widow’s dower in the property laid apart. It was not the intention of the Legislature to interfere with her rights, nor can she take her full one-third of the whole for life, and then “the family” take a homestead out of the balance. The homestead is subject to the dower, and so too is the exemption of personalty subject to the year’s support. Whatever of the year’s support has been received is to be deducted from the amount of the $1,000 00.

We are aware that the Acts upon these subjects do not expressly so provide, but upon a careful revision of the whole subject, we think this view of it is consistent■ with the Acts,- and until the Legislature makes a more definite provision on the subject, we think this most in accord with the principle on which the Acts are founded, and with the general intent of the law-making power in their enactments.

3. The object of the Homestead Act, and all its language, is confined to securing against “judgments, executions and decrees” the homestead for the family. It does not provide against any claim another may have to the property, and we will not undertake to say that this homestead provision interferes with the rights granted by the statute of distributions to the heirs- at-law. In cases of a solvent estate, where there are no creditors to interfere, we do not think the law intends to interfere with the distribution of the property, according to the statute of distributions.

4. But the heirs-at-law are not parties to this proceeding, that is, the adult heirs, and we do not feel called upon to adjudicate their rights. We hold the homestead in their 'minors, good against the creditors, and leave the heirs to take care of themselves.

5. The creditors of the father, out of whose estate a homestead and exemption is claimed for his minor children, may make objections to tbe regularity of the proceedings, contest the right of the applicants to be considered “the family of minors” of the deceased, and make any of the other issues proper to be made before the Ordinary, as provided by the statute for setting aside the homestead.

Judgment affirmed.

Brown, C. J., concurred, but wrote no opinion.