Opinion
(January Term, 1878.)
Homestead — Personal Property Exemption — Minor Children.
A. dies leaving a widow and minor children (having devised his estate by will), and thereafter the widow dies, neither of them having applied for a homestead or personal property exemption: Held, that the minor children of A. are entitled to a homestead, but not to the personal property exemption.
CONTROVERSY without action (C. C. P., sec. 315), submitted on 16 February, 1878, to Seymour, J. from WAKE.
The plaintiffs are minor children applying for a homestead and personal property exemption. Their father, W. B. Welch, devised his estate after payment of his debts, and died; and their mother died soon afterwards, neither one having applied for such exemptions.
His Honor held that they were entitled to said exemptions, and ordered that the same be laid off and assigned according to law. From this judgment the defendant appealed.
Merrimon, Fuller Ashe for plaintiffs.
W. H. Pace for defendant.
Upon these facts our decision is that plaintiffs are entitled to a homestead, but are not entitled to the personal property exemption. The statutes applicable to the case are cited and the reasons for the decision are given in Johnson v. Cross, 66 N.C. 167, where the same question was presented and maturely considered. A repetition of them here would be surplus work.
It was urged before us that the will, being a mode of conveyance, (241) without the wife's dissent had the effect of vesting title to the property in the creditors. Giving full force to the suggestion — the title would have vested in the creditors — co instanti the homestead right attached by force of the Constitution and statutes, and then upon what principle would the creditor have the preference? But it is difficult to perceive how the testator's will, coupled with the wife's silence for a few weeks, could have the same effect as his deed, with the assent and signature of his wife, signified on her private examination, as required by Const., Art. X, sec. 8.
If the Legislature should reenact section 10 of the Homestead Act, and amend section 7 by striking out the words "as guaranteed by Article X of the Constitution of this State," a new question would arise, to wit, the power of the Legislature to extend the personal property exemption to minors in a case like the present, or to increase the amount thereof, which would admit of discussion.
It will be certified as the opinion of this Court that the plaintiffs are entitled to have a homestead set apart, but are not entitled to a personal property exemption. With this modification, the judgment of his Honor is affirmed.
PER CURIAM. Modified.
(242)