
    Thomas D. Frierson vs. Salona Wesberry, Executrix
    
      Homestead Act — JExecutor de son tort.
    
    A widow for claiming and taking a horse as exempt from levy and sale under the Homestead Act, is not liable as executrix de son tort of her husband.
    Where a widow claimed and was allowed the benefit of the Homestead Act, as to the land, before the Act was repealed, and then the personal estate of the husband, in her possession, he having no personal representative, was, also before the repeal of the Act, levied on by the sheriff under an execution against the husband, and at the sale after the repeal of the Act, the widow claimed a horse as exempt from levy and sale under the Homestead Act: — Held, that the claim was-proper, and that the horse was exempt from levy and sale.
    BEFORE GLOVER, J., AT SUMTER, SPRING TERM, 1858.
    Sum. Pro. against tbe defendant as executrix of Samuel J. Wesberry, deceased, late husband of the defendant. The cause of action was a promissory note for forty-seven dollars and forty-one cents, given by Samuel J. Wesberry to the plaintiff, bearing date the 5th August 1856. The plaintiff was sheriff of Sumter, and the process was lodged with the coroner on 23d October, 1857. The defendant pleaded ne unques executrix and p lene administravit.
    
    It appeared that the plaintiff as sheriff, on the 11th December, 1857, under an execution lodged on the 9th June, 1856, upon a judgment by confession of E. W. Bonney against Samuel J. Wesberry, for two hundred and. twenty dollars, besides interest and costs, had levied on a wagon, horse, cattle, hogs, goats and a buggy, which he found on the plantation of the deceased, and in possession of the defendant. This property except the horse was sold at the residence of the deceased, by the plaintiff’s deputy, on sale day in February, 1858. The horse was claimed by the defendant under the Homestead Act, and by direction of the plaintiff was not sold by his deputy.
    The horse was worth sixty or seventy dollars. It further appeared that the defendant, as widow, had, on the 20th February, 1857, applied to the clerk for the benefit of the Homestead Act, that commissioners had been appointed, who, on the 8th May, 1857, made their return, allotting to her the homestead and fifty acres of land.
    His Honor thought that the defendant by claiming and retaining possession of the horse after the repeal of the Homestead Act, had so intermeddled as to make herself liable as executrix in her own wrong, and he decreed for the plaintiff the amount of the note.
    The defendant appealed and now moved this Court to reverse the decree on the grounds:
    1. Because the decree should have been for the defendant, on the plea of ne ungues executrix.
    
    2. Because the decree should have been for the defendant on the plea of plene administravit.
    
    
      Spain S Richardson, for appellant,
    cited 6 Stat. 214; 12 Stat. 85 ; 12 Stat. 672; Kinard vs. Moore, 3 Strob. 193 ; Reddish ads. Gill & Me Olure, MSS. Col. Dec. 1829, 1 Bice Dig. 321; Givens vs. JETiggens, 4 McO. 286; Ford vs. Rouse, Bice, 223; Galdwell vs. Michau, 1 Sp. 277.
    
      Blanding, contra.
   The opinion of the Court was delivered by

MüNro, J.

It appears that the defendant’s husband died sometime prior to tbe month of February, 1857, intestate, and that some short time afterwards, she made application to be allowed the benefit of the Homestead Act. That the commissioners appointed pursuant to the provisions of that Act, on the 8th of May following made their return, allotting to her the homestead, and fifty acres of land. On the 11th of December, the sheriff, by virtue of afi.fa. against the defendant’s husband, levied upon a Bfcrse, which the defendant also claimed under the Homestead Act, so that it is upon this claim which the defendant set up to the horse in question, that the plaintiff now seeks to charge her as an executrix in her own wrong.

Under the recent Act of 1851, the Homestead Act, no formal proceedings were required to be instituted in reference to the chattels that were exempt by its provisions; it was only in relation-to the homestead, and the fifty acres of land, that formal proceedings were rendered necessary. The defendant having been in possession of the horse from the death of her husband, it is fair to presume, that she claimed it under the Act of 1851, at the same time that she instituted proceedings in relation to the land. But assuming that she delayed to assert her right up to the time of the levy by the sheriff, this could by no means affect her right to do so, provided it was done prior to the repeal of the Act. It is therefore manifest that the defendant’s title to the horse in question under the Act of 1851, was as completely vested in her, as was her title to the homestead, and the subsequent repeal of the Act, could no more affect her title in the one case, than it could in the other.

The motion to reverse the circuit decision is therefore granted.

O’Neall, Wardlaw akd Whitner, J.J., concurred.

Motion granted.  