The opinion of the Court, was delivered by
Lewis, J.In the distribution of money raised by the sale of real estate of Jacob Hobson, the Court below awarded to the defendant in the execution the sum of $235.83, under the Exemption Act of 9th April, 1849. There had been no election by the debtor to retain real estate, and, consequently, no proceedings for the purpose of .ascertaining whether it could be divided without injury to the whole. In exempting from execution property to the value of $300,-the primary object of the legislature was to preserve, for the use of the debtor and his family, either a home, or such articles of personal property as were necessary for their comfort. The payment of money arising from the sale of articles necessary to the enjoyment of life, would but lead an improvident or an intemperate debtor into temptation, to permit his family to be deprived of these necessary articles, in order that lie might have the means of indulging in the habits which had brought the sheriff to his door. If the proceeds be placed in his hands, there is no security that he will expend it in the purchase of the articles intended to be exempt from execution. ' There are, no doubt, many unfortunate citizens, whose property is brought to the hammer without any fault of their own; but the debtor who permits his family to be deprived of articles necessary for their use, and which the law authorizes him to retain, may well be suspected of an intention to deal unfairly by them. The money, arising from the sale of pror perty exempt from execution, is therefore never to be paid to the debtor, except under the pressure of necessity, created by an impossibility to divide the real estate. No proceedings for this purpose can be instituted until the debtor signifies his election to retain real estate. His omission to do so, or to claim the personal estate exempt from execution, according to the terms prescribed by the statute, is a waiver of all its advantages. The Court below *310was therefore in error in awarding to the debtor, in this ease, any part of the proceeds of the real estate.
It is ordered and adjudged, that so much of the decree of the Court below as awarded to Jacob Hobson the sum of $235.83, arising from the sale of his real estate, be reversed. And it is further ordered and adjudged, that the said sum of money be paid fro rata, to Weaver & Taylor, and Supplee & Taylor, on their respective judgments of the 16th April, 1850, in addition to the sums already awarded to them. In all other respects, the decree of distribution is affirmed.