#### C. F. BRUTON, Executor of Frederick McRae, v. LUCINDA McRAE, widow of Frederick McRae, and Guardian ad litem, of Walter McRae, infant child, devisee and heir at law, and Others.

(Decided November 21, 1899.)

Sale of Land for Assets — Homestead—Minor Child; Heir and Devisee.

In a proceeding to sell land for assets, the executor can not sell the homestead interest of a minor child and devisee of the testator, durante minoritate.

*207Special PeoceediNg- to sell land for assets, beard before Mclver, ,7., at Superior Court of MoNtgomeby County, Spring Term, 1898. His Honor rendered judgment against tbe plaintiff, wbo excepted and appealed.

Case on Appeal.

Tbis was an action begun before tbe Clerk by tbe plaintiff, executor, to subject tbe lands devised in tbe will to a sale for assets to pay debts, and resisted by tbe guardian ad litem upon tbe grounds tbat tbe infant defendant was entitled to a homestead in tbe lands, and was transferred to tbis Court for trial upon issues of law and facts.

Upon tbe hearing before bis Honor, Judge Mclver, tbe following facts were agreed to:

Tbat tbe lands described in tbe petition were devised by tbe testator, Frederick McRae, in separate and distinct parcels, to tbe several defendants, 9 in number, in tbe manner set out in tbe petition.

That tbe wall was properly probated, and tbe plaintiff duly qualified as executor, and tbat there was not sufficient personal assets to pay tbe debts. ■

Tbat tbe defendant Walter McRae was a devisee in the will, tailing thereunder a specific parcel of the lands described in the petition. Tbat be was also a son and heir-at-law of the testator, and a minor under tbe age of 21.

Upon tbe facts agreed to, bis Honor, Judge Mclver, gave tbe following judgment:

“Tbis cause coming on to be beard before tbe undersigned Judge, upon tbe petition of plaintiff, before tbe Clerk of tbe Superior Court of Montgomery County, praying for an order to sell land, tbe land described in this petition, to make assets, and tbe same being transferred to tbis Court upon issues of law and facts, and it appearing to tbe Court tbat one of tbe *208defendants, Walter McRae, is the son and heir-at-law of plaintiffs 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 21 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. McIvee,

Judge Superior Gourt.

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.

Fey & Rush,

Attorneys for Appellant.

Plaintiff appellant not represented in this Court.

Messrs. Douglass & Simms, for appellee.

*209MONTGOMERY, J.

Frederick McBae 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 21 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 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 Mclver, 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.

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 sectioii *210and in that article of tbe Constitution means tbe debt of tbe owner of tbe homestead; in tbe case before us, of tbe testator. In tbe petition of tbe executor, tbe request to sell tbe land of tbe testator allges, of course, that tbe debts for tbe payment of which tbe property is prayed to be sold is declared to be tbe debt of tbe testator. It is not tbe debt of tbe infant son Walter, which is tbe foundation for tbe application to sell tbe real estate described in tbe petition. Tbe executor, for tbe creditors in an adverse proceeding against tbe devisees, ignores tbe disposition of tbe land under tbe will, and pro-needs as if tbe testator died intestate in that respect. Tbe specific devises of tbe real estate under tbe will would control tbe rights of tbe devisees, but as to creditors, they do not control. Tbe creditor’s rights are paramount and, subject to our exemption laws, can be enforced notwithstanding a devise or will of tbe decedent. When tbe creditors took that course through tbe executor, tbe creditors can not complain if the homestead exemption is set up by tbe devisees or any one of them.

In tbe answer of tbe infant, Walter, be claimed also tbe personal property exemption of $500. That question was not passed upon by bis Honor below, and no exception appearing in tbe record in reference to that matter, it is presumed that tbe claim set up for tbe personal property exemption was abandoned. In any event be was not entitled to it.

Affirmed.

'ClauK, J.,

dissenting in part. Tbe testator left only one minor child, and to him be devised no realty except tbe remainder in 10 acres after tbe life estate therein devised to tbe widow. It seems to me that a homestead can not be laid off to tbe minor in other people’s property, and which they, not be, are to enjoy. Tbe adults to whom all tbe realty *211except the remainder in tbis 10 acres was devised, take it against tbe minor, and they have no right to a homestead against the testator’s creditors. The object of the homestead provision was not the postponement of creditors bnt the protection of the beneficiaries.

When the Constitution, Art. X, see. 3, provides 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 refers to cases where the homestead descends upon or is devised to such minors, and not to a case like the present in which it is devised to others and when the minor can derive no conceivable benefit from the exemption of the property. This case differs from all former ones in that the homestead is devised away from the minor, as the homesteader had a right to do.

A reasonable construction is that exemption “during minority” is for the sole benefit df the minor. To construe the language literally and give the adult devisees of the homestead protection from the creditors of the testator during the minority of a minor who can. not enjoy a foot of the homestead, savors of the literalness which an ancient writer tells us sentenced to death a surgeon for reviving by the use of a lancet one stricken with sudden illness, because the statute punished with death any one who should draw blood in the streets. If the Constitution had provided that the homestead should remain a homestead during the minority of anyone of the children, and good alike against adult heirs and devisees, then the contention of the defendant would be valid. The homestead exemption in favor of a minor can not be more extensive than the minor’s interest in the homestead.

I concur that there is no continuation of the personal property exemption after the death of the debtor.