Bruton v. . McRae

MONTGOMERY, J.

Frederick McBae died in Montgomery County leaving a last will and testament in which the plaintiff, C. F. Bruton, was named executor. Upon qualification, the executor found that the personal property was not sufficient to pay the debts of the testator, and he filed a petition to make real estate assets for the payment of the debts. The testator devised to the defendants specific parcels of the land described in the petition. Among the devisees was a son, Walter, who is under 21 years of age. Walter’s mother, acting as his next friend, filed an answer to the petition admitting the facts set out therein, but averring that he was entitled to a homestead to the value of $1,000 in the lands described in the petition, generally, and without reference to the interest specifically devised to him. When the matter came on for hearing upon the questions of law raised by the pleadings before his Honor Judge Mclver, he held that the infant defendant, Walter, the son of the testator, was entitled to a homestead in the lands described in the petition, and it was adjudged that the plaintiff should sell under the order of the Superior Court, during the minority of the testator’s son Walter, only so much of the land described in the petition as would be in excess of the homestead exemption of its value of $1,000. The correctness of this judgment is the only question presented for our consideration.

We are of the opinion that the conclusion of the Court below was the correct one, and that the judgment was in conformity thereto. This is the first time this question has been brought to this Court, but we think its settlement is without practical difficulty. Sec. 3, Art. X, of the Constitution, ordains that “the homestead, after the death of the owner thereof, shall be exempt from the payment of any debt during the minority of his children or any one of them.”

It is perfectly clear that the debt referred to in that sectioii and in that article of tbe Constitution means tbe debt of tbe owner of tbe homestead; in tbe case before us, of tbe testator. In tbe petition of tbe executor, tbe request to sell tbe land of tbe testator allges, of course, that tbe debts for tbe payment of which tbe property is prayed to be sold is declared to be tbe debt of tbe testator. It is not tbe debt of tbe infant son Walter, which is tbe foundation for tbe application to sell tbe real estate described in tbe petition. Tbe executor, for tbe creditors in an adverse proceeding against tbe devisees, ignores tbe disposition of tbe land under tbe will, and pro-needs as if tbe testator died intestate in that respect. Tbe specific devises of tbe real estate under tbe will would control tbe rights of tbe devisees, but as to creditors, they do not control. Tbe creditor’s rights are paramount and, subject to our exemption laws, can be enforced notwithstanding a devise or will of tbe decedent. When tbe creditors took that course through tbe executor, tbe creditors can not complain if the homestead exemption is set up by tbe devisees or any one of them.

In tbe answer of tbe infant, Walter, be claimed also tbe personal property exemption of $500. That question was not passed upon by bis Honor below, and no exception appearing in tbe record in reference to that matter, it is presumed that tbe claim set up for tbe personal property exemption was abandoned. In any event be was not entitled to it.

Affirmed.