Kinchen v. Talbert

128 So. 525, 170 La. 590, 1930 La. LEXIS 1789

• Court: Supreme Court of Louisiana
• Decided: May 5, 1930
• Docket: No. 30346.
• Status: Published

Opinion

LAND,’J.

At bis death, Edward S. Kinehen left as bis sole heirs six ehildren'by a first marriage, and ten children, all minors, and a widow in community by a second marriage.

During the existence of tbe second marriage, Kinehen purchased in tbe parish of Livingston 60 acres of land, upon which he and bis family resided at tbe time of bis death.

A judgment in a sum exceeding $700 was obtained by Wm. D. Talbert against Kinehen for a debt contracted by him during tbe second marriage.

Talbert was appointed administrator of tbe succession of Kinehen, and obtained an order for tbe sale of all of tbe property of tbe sue- cession, including the land and certain movables, to pay debts.

■Plaintiff filed a rule on the administrator to show cause why the property of the second community should not be set aside to her, as surviving widow, and to her minor children as a homestead, and declared to be exempt from sale by the administrator to pay the debts of the succession, and particularly the judgment obtained by Talbert against Kinchen.

Judgment was rendered in the lower court declaring the surviving widow and her minor children entitled to a homestead exemption on their thirteen-sixteenths interest in the property, movable and immovable, and ordering the three-sixteenths interest in the property, owned by the major heirs of the first marriage, sold for cash at public auction to the highest bidder. The judgment also canceled a prior order for the sale of all of the property of the succession obtained by the administrator.

Neither the plaintiff nor her minor children own any other property. They reside on and eke out a livelihood from the 60 acres of land which belong to the community formerly existing between the surviving widow and her deceased husband.

The Constitution of 1921, article 11, § 1, expressly provides that the benefit of the homestead exemption “may be claimed by the surviving spouse, or minor child or children, of a deceased beneficiary.”

In the recent case of Succession of Cade W. White, Sr., 127 So. 883, 1 we had occasion to interpret the above provision of our present Constitution, and to .review at length our jurisprudence affecting homestead exemptions. In the case cited, we held that in all cases in which the husband of the claimant, if he were living, could successfully claim the homestead exemption, the right of the husband and father to the exemption is transmitted on his death to his widow and children.

The widow, in such case, does not seek to claim the exemption against her own debts, as the head of a family or because of dependents, but claims such exemption against debts contracted by her husband or by the marital community, debts against which the husband, himself, could have successfully claimed the exemption.

As the husband could have claimed the exemption in the case at bar, the widow and her minor children are clearly entitled to such exemption.

We concur also in the finding of the lower court that the value of the property held subject to the homestead exemption is less than $2,000.

The homestead claimant has not appealed from the judgment rendered in this case, nor has she answered the appeal and prayed for any amendment of the judgment.

The administrator alone has appealed.

We are compelled, therefore, to affirm the judgment as we find it.

Judgment affirmed.

1 Ante, p. 403.