Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-01-05
BURTON ". NIcRAE.
Supreme Court OF North Carolina.
November 81 1890.

supreme Court or North Carolina.
November 81 1899.
UNDER ARTICLE 10 OF THE CON-
STITUTION A MINOR CHILD OF
A DECEDENT MAY CLAIM THE
HOMESTEAD OUT OF DECE-
DENTS ESTATE.
SUCH CHILD CANNOT CLAIM THE
PERSONAL PROPERTY EXEMP-
TON OF $500.
This was a proceeding by an execu-
tor to make real estate assets for the
payment of testator's debts. The testa-
tor devised to the defendants specific
parcels of land described in the petit
tion. Among the devisecs was n son.
Walter, who is under 81 years OF age
Walters mother, acting as his next
friend, filed an answer to the petition,
admitting the facts set out therein, but
aYerring that he was entitled to a
homestead to the value of $1,000 in the
{. lands described In the petition gener-
ally, and without reference to the in
terest specifically devised to him. When
the matter came on for hearing upon
the questions of law raised by the
pleadings before his honor. he held
that the infant defendant, Walter, the
son Of the testator. was entitled to n
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 peti-
ton as would be in excess of the home
stead exemption of its value of 81 900
From this decision there was an ap-
peal.
The court says:
We are of the opinion that the con-
clusion OF the court below was the cor
rect 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 Section
3. art 10, 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
or them" 1t Is perfectly clear that the
debt referred to in that section and in
that article of the constitution means
the debt Of the owner Of the homestead
lin the case before us. Of the testator.
Bin the opinion of the executor the re-
quest to sell the land of the testator
alleges, OF course, that the debt for
the payment of which the proporty is
prayed to be sold is declared to be the
debt Of the testator. 1t is not the debt
OF the infant son. Walter. which is the
foundation for the application to sell
che real estate described in the petition
The executor for the creditors in an
adverse proceeding against the devil
sees ignores the disposition Of the land
under the Will, and proceeds as il the
testator died interstate In that respect.
The specific devises OF the real estate
under the will would control the rights
OF the devisees, but as to creditors thew
DO not control. The creditors rights
are paramount, and. subject to our ex-
emptfon laws, can be enforced notwith
standing n devise OF will Of the dece-
dent. When the creditors took that
course through the executor, the credit
TORS cannot complain II tho homestead
exemption Is set up by the devisees. or
any one of them. In the answer OF the
infant Walter, he claimed also the per-
eonai property exemption Of $780, That
question was not passed upon by his
Aenor below. and, no exception appear