Loury v. Herbert

25 Miss. 101

• Court: Mississippi Supreme Court
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

The plaintiffs in error filed their petition in the probate court of Carroll county, against the defendant in error, as administrator of one A. W. King, deceased, alleging that the said Ara-bella T. Loury, as the widow of the said King, before her marriage with the said James R. Loury, was entitled to the personal estate of the intestate, by law exempt from execution during 'his lifetime. The court below dismissed the petition, on the ground that the widow is only entitled to the personal property .exempt from execution, where the estate of her husband is in.-.solvent.

The act of 1839 (Hutch. Code, 680, § 2) is in these words: “ All property now exempt from execution under the provisions of the existing laws of this State, shall, upon the death of any person possessed of the same, descend fo the widow of the deceased, and be exempt in the same manner as in the deceased before his death.” The act of 1846 says, “ the widow of any deceased husband shall be allowed and entitled to all the personal estate of her deceased husband, which is by law exempt from sale or distress under execution,” &c.

The object of the act of 1846 wasffo limit the claims of the widow to the personal estate of the husband exempt from execution, and not allow it to extend to the real estate exempted from execution by the statute of 1841. The language of the statutes of 1839 and 1846 is too broad and comprehensive to confine the rights of the widow to an insolvent estate. We are of opinion, that, under the language of the two acts, the widow, in all cases, is entitled to the personal property exempt from execution; and, therefore, reverse the decree of the probate court, and remand the cause for further proceedings in the probate court.

Decree reversed, and cause remanded.