Case on Appeal.
This was an action begun before the clerk by the plaintiff, executor, to subject the lands devised in the will to a sale for assets to pay debts, and resisted by the guardian ad litem upon the grounds that the infant defendant was entitled to a homestead in the lands, and was transferred to this Court for trial upon issues of law and facts.
Upon the hearing before his Honor, Judge McIver, the following facts were agreed to:
That the lands described in the petition were devised by the testator, Frederick McRae, in separate and distinct parcels, to the several defendants, nine in number, in the manner set out in the petition.
That the will was properly probated, and the plaintiff duly qualified as executor, and that there was not sufficient personal assets to pay the debts.
That the defendant Walter McRae was a devisee in the will, taking thereunder a specific parcel of the lands described in the petition. That he was also a son and heir-at-law of the testator, and a minor under the age of twenty-one.
Upon the facts agreed to, his Honor, Judge McIver, gave the following judgment:
"This cause coming on to be heard before the undersigned judge, upon the petition of plaintiff, before the clerk of the Superior Court of Montgomery County, praying for an order to sell land, the land described in this petition, to make assets, and the same being transferred to this court upon issues of law and facts, and it appearing to *Page 146 (208) the Court that one of the defendants, Walter McRae, is the son and heir-at-law of plaintiff's testator, Frederick McRae; also that said Walter McRae is a devisee in the last will and testament of said Frederick McRae, and is a minor under the age of twenty-one years, and entitled to a homestead in the lands described in said petition: Upon motion, it is considered and adjudged by the Court that the plaintiff is entitled to sell under the order of the Superior Court during the minority of the said Walter McRae only so much of the lands described in his petition as shall be in excess of the homestead exemptions of Walter McRae, of the value of $1,000, to be appraised and set apart by said plaintiff to said minor, as provided by law, before the sale of any lands described in said petition. That the costs of this action be paid by the plaintiff out of any funds in his hands belonging to the estate of his testator. That this cause be remanded to the clerk of the Superior Court of Montgomery County for such further proceeding as shall become necessary herein, in accordance with the judgment of this Court.
JAMES D. McIVER, Judge Superior Court.
To which judgment the plaintiff excepted and appealed, assigning as error:
1. That he finds as a matter of law that the infant defendant Walter McRae is entitled to homestead in lands devised by Frederick McRae.
2. That he finds as a matter of law that the infant defendant Walter McRae is entitled to homestead in the lands devised specially, and by fixed and specific boundaries, to the other defendants.
Frederick McRae 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 twenty-one 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 *Page 147 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 McIver, 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.FRY RUSH, Attorneys for Appellant.
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 section (210) and in that article of the Constitution means the debt of the owner of the homestead; in the case before us, of the testator. In the petition of the executor, the request to sell the land of the testator alleges, of course, that the debts for the payment of which the property is prayed to be sold is declared to be the debt of the testator. It is not the debt of the infant son Walter, which is the foundation for the application to sell the real estate described in the petition. The executor, for the creditors in an adverse proceeding against the devisees, ignores the disposition of the land under the will, and proceeds as if the testator died intestate in that respect. The specific devises of the real estate under the will would control the rights of the devisees, but as to creditors, they do not control. The creditors' rights are paramount and, subject to our exemption laws, can be enforced notwithstanding a devise or will of the decedent. When the creditors took that course through the executor, the creditors can not complain if the homestead exemption is set up by the devisees or any one of them.
In the answer of the infant, Walter, he claimed also the personal property exemption of $500. That question was not passed upon by his Honor below, and no exception appearing in the record in reference to that matter, it is presumed that the claim set up for the personal property exemption was abandoned. In any event he was not entitled to it.
Affirmed. *Page 148