The opinion of the court was delivered, May 17th 1873, by
Agnew, J.It has been held repeatedly by this court that the wife, or a member of the family, of the defendant in an execution who is absent from home at the time of a levy on his property, may claim his exemption for him: Waugh v. Bucket et al., 3 Grant 319; Wilson v. Mellroy, 8 Casey 82 ; McCarthy’s Appeal, 18 P. F. Smith 217. The reason of this is said to be a presumption of agency in such case for the debtor, who is absent, and incapable of protecting his interest, until it might be too late, and interfere with the execution of the writ; and the interest which the family of a debtor has in retaining the property that the law intends to secure to the family, as well as to the debtor himself. Indeed, there are cases where the exemption has been denied to him, when it was manifest the interests of his family would fail to be promoted by its allowance: Hammer v. Freese, 7 Harris 555; Weaver’s Appeal, 6 Harris 307.
In the present case, the demand of the benefit of the exemption made by the wife at the time of the levy, is proved clearly by two witnesses. This was denied by the sheriff, who testified that not finding the defendant at home, he went after him, found him, and explained the object of his visit, and that the defendant made no claim of his exemption. After the vend. ex. had been issued, and the property advertised, the defendant made a written request for the benefit of the exemption law, on the 25th of April, and an appraisement was made on the 1st day of May, four days before the sale; the appraisers having appraised personal property to the *370value of $18.25, found that the real estate was worth more than the remainder, $281.75, but that the land could not be divided without prejudice. The auditor declined to find the fact, whether the wife of the defendant had made the claim of exemption on the day of the levy, on the ground that the written claim came too late; being governed, as he states, by the decision of the court below in the case of Kriebel v. Seibert. That decision has been reversed in an opinion just read. We think the auditor, acting under this stress, erred in refusing to decide the question of claim. Had he done so, and found the claim of the exemption had been properly made by the wife on the day of levy, it would have brought the case within the principle of the decision just made in Seibert v. Kriebel et al.
' The decree of the court is therefore reversed, and the record remanded, with an order that the case be referred to an auditor to determine the facts necessary to make a final distribution of the fund, and the costs of this appeal are directed to be paid by the appellee.