Ogbourne v. Ogbourne's Adm'r

60 Ala. 616

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BRICKELL, C. J.

It is the law of this State, that the widow’s quarantine does not extend beyond the right to occupy or retain the dwelling-house, where her husband most usually resided next before his death, with the offices and buildings appurtenant thereto, and the plantation connected therewith, until dower is assigned. — R. C. § 1630. When, as in this case, the husband, at his death, had his residence in a town or city, owning a plantation situate in the country, several miles distant, in the occupancy of a tenant, under a contract of renting, such plantation, is not, within the meaning of the statute, connected with the dwelling-house, and the widow cannot claim the rents thereof, as accruing to her, because of her quarantine.—Weaver v. Crenshaw, 6 Ala. 873; Smith v. Smith, 13 Ala. 329; McAllister v. McAllister, 37 Ala. 484; Clary v. Sanders, 43 Ala. 287. Without inquiring whether the Court of Probate has jurisdiction to allow the widow compensation for the detention of her quarantine, in any case, it is enough to say, the appellant had not the right of quarantine in the plantation, the rents of which she collected. This was the ruling of the Court of Probate.

2. The remaining question is, whether the provisions of the Code regulating the exemptions of personal property of decedents, to the widow and minor children (R. C. §§ 2061-2), are repealed by the act of February 8, 1872, entitled “An act to exempt from administration property of decedents, and vest titles in the widow, or child or children” (Pamph. Acts 1871-2, p. 91); or, whether the exemptions allowed by the last named statute, are cumulative to the exemptions the Code allows.

The repealing clause of the act of 1872 is general — of “all laws and parts of laws contravening this act; ” and it does not operate a repeal of an existing statute, relating to the same subject-matter, not in conflict with the provisions of the act.—People v. Durick, 20 Cal. 94. It is merely a legislative declaration of the necessary effect of the act, if the clause had not been inserted. Subsequent statutes, not inconsistent with, or repugnant to former statutes, are not a repeal of the former, unless it is clear the subsequent statute was intended to prescribe the only rule which should govern the subject.—Sedgwick on Stat. & Con. Law, 97-104; Daviess v. Fairbairn, 3 How. 636; Sacramento v. Bird, 15 Cal. 294; Serann v. Buck, 40 Miss. 268; Johnston's Estate, 33 Penn. 511. A subsequent statute, revising the subject-matter of the former statute, and evidently intended as a substitute for it, in the language of the Supreme Court of Massachusetts, “ although it may not contain express words of repeal, will, on principles of law, as well as in reason and common sense, so operate.”—Bartlett v. King, 12 Mass. 345; Wakefield v. Phelps, 37 N. H. 304; Towle v. Manett, 3 Greenl. 22; Lewis v. Stout, 22 Wisc. 234.

3. Under the provision of the Code, the exemption to the widow and minor children was matter of right, whether the husband and father died testate or intestate; the act of 1872 limits the exemption to the widow, or minor children, of intestates. The Code confers the right on the widow and minor child or children jointly; the statute of 1872 confers the right on the widow, if there be one, to the exclusion of the minor children, who take only in the alternative that there is no widow to take. The Code enumerates specific personal property as exempt, and if the decedent had not that property, there was no exemption, though he died possessed of a large and valuable personal property, and his family were reduced to destitution. The act of 1872 confers an exemption, not of specific property, limiting it only to value — not exceeding one thousand dollars, and it may be either of money or property. In other respects, the provisions of this act, and of the Code, are so variant, that the two can consist only by regarding the act of 1872 as cumulative, creating an additional exemption, or as a substitute for the Code, prescribing the only rule which shall control as to the exemptions of the personal property of decedents. The latter is its proper construction, manifestly. The title of the statute is indicative of this construction: “ An act to exempt from administration property of decedents, and vest titles in the widow or child or children.” A comparison of its provisions with the provisions of the Code shows clearly that the purpose of the legislature in its enactment was to prescribe a new and only rule on this subject. It operates a repeal of the provisions of the Code; and at the death of appellant’s husband, when her right accrued, was the law creating and defining it.

The Court of Probate did not err in so ruling, and its judgment is affirmed.