Wiggins v. Mertins

• Decision Date: 28 May 1896
• Citation: 20 So. 356,111 Ala. 164
• Parties: WIGGINS v. MERTINS.
• Court: Alabama Supreme Court

20 So. 356

111 Ala. 164

WIGGINS v. MERTINS.

Supreme Court of Alabama

May 28, 1896

Appeal from probate court, Montgomery county; J. B. Gaston, Judge.

Exceptions by Sylvia Wiggins to the report of commissioners appointed on petition of G. F. Mertins, guardian, to set apart exempt personal property to the minor children of J. F. Roper deceased. The exceptions were overruled, the report confirmed, and claimant appeals. Affirmed.

On February 14, 1894, J. F. Roper, who was then a bona fide resident of Montgomery county, Ala., died, leaving, at the time of his death, certain minor children, to wit, Effie Maggie, Nellie, and Robbie Roper. On March 15, 1894, S. S Boothe was appointed administrator of the estate of J. F Roper,deceased, and took possession of the property belonging to said estate, which consisted of money and choses in action. On November 25, 1895, the appellee, G. F. Mertins was appointed guardian of Maggie, Nellie, and Robbie Roper; the said Effie having attained her majority in the meantime. No property or portion of said estate having been set aside as exempt to said minors, as required by law, G. F. Mertins, as guardian, on November 25, 1895, filed his petition in the probate court of Montgomery county, praying for an order of said court to have set aside as exempt, and for the benefit of said minors, such portion of the estate as they were entitled to. Upon the filing of this petition, the probate court made an order appointing three commissioners, directing them to set aside said exemption as provided by law. This commission was executed, and the commissioners made their report on December 13, 1895, in which they set apart the sum of $1,000, belonging to the estate of J. F. Roper, deceased, and in the hands of his administrator, as exempt to the minors, Maggie, Nellie, and Robbie Roper. On January 11, 1896, Sylvia Wiggins, the appellant, claiming to be a simple contract creditor of the estate of J. F. Roper, deceased, filed several exceptions to the report of the commissioners, and asked that the report of the commissioners be set aside and not allowed, or otherwise modified, so as to allow the said three minors only such sum as they may be entitled to have set apart to them as exempt after this claimant's debt has been paid.

There were several grounds of exceptions to the report of the commissioners, which may be summarized as follows: (1) The administrator of said estate had been appointed and qualified long prior to the filing of the petition to have the alleged exemptions set apart, and no inventory has ever been made or filed of the assets belonging to said estate, as required by law. (2) Said minors, Maggie, Nellie, and Robbie Roper, are not entitled to have $1,000 set apart as exempt to them. (3) At the time of the death of the decedent, J. F. Roper, he left four children, to wit, Effie, Maggie, Nellie, and Robbie Roper. Prior to the filing of the petition to have the alleged exemptions set apart to the said Maggie, Nellie, and Robbie Roper, said Effie Roper had become of legal age without in any manner claiming said exemptions of personal property, or any portion thereof, and has not yet made such claim, whereby the said Effie Roper lost and waived any right which she might have had during her minority to claim the same, or her portion thereof, to wit, one-fourth of whatever might be exempt to all of said minors, to wit, $250, and said sum or portion of said personal property fell back into the assets of the said estate, and became liable and subject to the debts thereof, and did...