Moore v. Parker

• Decision Date: 18 May 1880
• Docket Number: CASE No. 887.
• Citation: 13 S.C. 486
• Parties: MOORE v. PARKER.
• Court: South Carolina Supreme Court

13 S.C. 486

MOORE

v.PARKER.

CASE No. 887.

Supreme Court of South Carolina.

May 18th, 1880.

1. Where a Circuit decree gives a homestead to a widow, this court will not assume that she was not the head of a family, the appeal-brief only showing that she had no children.

2. A widow without a family of her own, is herself the family of her deceased husband, and as such, is entitled to a homestead exemption out of his property as against his debts.

Before FRASER, J., Colleton, October, 1879.

This was a petition by Dora W. Moore to the Court of Probate, alleging that the estate of her deceased husband, R. T. Moore, was insolvent, and praying that a homestead might be admeasured to her out of her husband's lands, and an exemption of his personalty be also assigned her. This was resisted by the administrator, who was also a creditor. The Court of Probate ordered a writ of admeasurement to issue, and the administrator appealed to the Circuit Court.

The Circuit decree is as follows:

This case was heard by me at the term of the Court of Common Pleas for Colleton county, in October, 1879, on an appeal from an order of the judge of Probate, directing that a writ do issue to set off a homestead for the petitioner.

R. T. Moore died intestate, in the year 1878, leaving no children, but the petitioner, his widow, surviving him. The appeal has been taken by James H. Parker, the administrator of R. T. Moore, the intestate. No question was raised as to the jurisdiction of the judge of Probate. The only point made was, that a widow is not the head of the family unless she has children.

An unmarried man is not the head of a family, unless made such by having children, or perhaps other members of a household around him, constituting a family, and is not, therefore, if without a family, entitled to homestead. I can see no reason why a widow, or other unmarried woman, should be entitled to homestead, unless she have children, or perhaps other persons around her constituting a family.

But this disability exists as to the unmarried man only so far as his own debts are concerned; and so a woman who is unmarried, and not the head of a family, cannot claim homestead against her own debt. It is quite a different thing when an attempt is made to subject the property of the husband to his own debts. In this case, the wife, if there are no children, is the family, and if the husband be dead, then the widow is herself the family. The right of exemption attached to the property in the lifetime of the husband, and continues after his death, as well in favor of the widow as of the widow and children.

The mode of setting off the homestead for the widow is prescribed in Section 83, A. A. 1873, p. 372, and application was properly made to the judge of Probate. It is ordered and adjudged that the order of the judge of Probate be made the judgment of this court, and that the case be remanded to that court for such further proceedings as may be necessary to carry out the same.

From this decree, the administrator, J. H. Parker, appealed.

Mr. T. M. Mordecai, for appellant, cited Thomp. on Homest. 44, 45; 31 Texas 680;5 S. C. 500; 42 Geo. 406.

Mr. J. D. Pope, contra, cited the statutes upon the subject of homesteads. 2 S. C. 227, 311;3 S. C. 227;8 S. C. 97; 11 Nev. 260; 90 Ill. 250.

The opinion of the court was delivered by

MCIVER, A. J.

This is an appeal from the judgment of the Circuit Court affirming a decree of the judge of Probate, granting the prayer of the petitioner that a homestead be assigned to her out of her deceased husband's insolvent estate. The judge of Probate states that her claim was resisted by Parker, the administrator and principal creditor, “ on the sole ground of the petitioner being without child or children,” and the Circuit judge says: “ The only point made was, that a widow is not the head of the family unless she has children.” In the case as thus presented, there cannot be a question of the correctness of the decision of the court below, as it is strictly in accordance with the decision of this court in the case of Bradley v. Rodelsperger, 3 S. C. 226, where it was held that the fact that a widow is childless is not, of itself, sufficient to deprive her of her right of homestead. The petitioner, though childless, might, nevertheless, have been the head of the family, and, as we are bound to assume that the judgment of the court below is correct until error is shown by the record as presented here, we would, if necessary, assume that it had been shown to the satisfaction of the court below, that the petitioner was the head of the family, inasmuch as the only question made in that court, as appears by the record presented here, was whether it was necessary, in order to entitle a widow to claim a homestead exemption out of her husband's estate, against his debts, that she should have a child or children.

It is true that the...