
    KERST’S APPEAL.
    Where a man did not live with his wife, who resided in a house belonging to the husband, she is entitled to claim the exemption unless the husband has •expressly waived the exemption.
    Appeal from the Court of Common Pleas of Union County. No. 59 Jan. Term, 1883.
    This is an appeal from the decree of the Court distributing money in Court, arising from the Sheriff’s sale of the real estate •of Henry Hunsicker. In 1861, Kerst obtained a judgment of :$188.31 against Henry Hunsicker, which was revived from time 'to time, until 1879, when it amounted to $461.66. It was a lien •on a house and lot, owned by the defendant in Laureltown, Union County, Penna. Shortly after the entry of the original judgment, the defendant, Henry Hunsicker, deserted his wife and ■children, and, since that time, .he has not lived with them. In 1881, an execution was issued on this judgment. Hunsicker was working in Northumberland County, near the line of Union County. The Sheriff notified him, that he had the execution,, and that the writ did not waive the exemption. lie said he did not claim it, but his wife might. The Sheriff, therefore, did not', make an appraisement to Henry ITunsicker, but on Nov. 30th, ,,1881, proceeded to Laurelton to make a levy on the property of the defendant. The wife of the defendant made claim for the benefit of the Act of April 9th, 1849, and signed her name to a printed request for the exemption. The Sheriff set aside personal property to the amount of $10. The report was made that the real estate could not be divided without injuring the whole, but it was not appraised. The property was then brought before the inquisition and condemned. Subsequently a writ oí Ven. Ex. was issued. After the issuing of the Ven. Ex. the Sheriff received from H. H. Mercer, as attorney for defendant, a notice in writing, claiming the benefit of the Act of April 9th, 1849. This notice was disregarded by the Sheriff. The property was sold by virtue of the writ of Ven. Ex. on March 9th, 1882, and the money paid into Court. "William Van G-ezer was appointed auditor to distribute the fund, and held, that the wife could not. claim the benefit of the Act of April 9th, 49 for herself, and that the defendant was too late. Exceptions were filed to the-report of the auditor, the Court reversed his ruling, and ordered $290 to be paid to the defendant, in the following opinion delivered Sept. 18,1882:
    Per Curiam.
    The error assigned is the refusal of the auditor to allow the-defendant the benefit of his claim under the exemption law. On. the 26th day of November A. D. 1881, D. B. ICerst issued a EL Ea. to No. 73, Dec. Term A. D. 1881, against Henry IIunsicker¿. to this writ the Sheriff made return, “Nov. 30th, Í881 Def’ts. wife claims the benefit of the $300 exemption law as per paper-hereunto attached, personal property to the amount of $10.00 set. aside under her claim and balance claims out of real estate. Dec.. 19th, 1881 real estate levied upon and condemned. So answers. S. H. Himmelreich, Sheriff.” It appears from the papers hereunto attached to the writ that an appraisement of the real estate.was held on the 30th of Nov., 1881, the day the demand for the-¡ ■ benefit of the exemption was made, and that the appraisers found. the real estate could not be divided without injury to or spoiling the whole, and determined against a division of the same. The record evidence shows beyond cavil, tha the defendant is entitled to his claim.
    He did not waive it, in the judgment at the time the debt was contracted. The return of the Sheriff shows that his wife claimed the benefit of the act. at the proper time. The law presumes for her making the demand that it was done with the assent of the husband, and in his right, and not her own; Waugh vs. Burket, 3 Grant 319 and kindred cases.
    The appraisement was held in the manner provided by law, in order to justify the claim. Standing then on the record evidence alone, it is clear that the defendant is entitled 'to his claim. He can only be defeated by parol evidence, clearly showing that he has deprived himself of his right. It is urged that this evidence has been furnished. Let us examine it and see. The Sheriff testified that after the Fi. Fa. came to hand, he met the defendant and told him that he had the writ, and asked whether he claimed the exemption and “he said that he did not claim but his wife might.” He further swears that, “Mr. Hunsicker’s wife, daughter and son were present when I made the levy. The wife claimed the benefit of the exemption act. She said that she claimed it for herself. She said that she claimed the $300. On cross-examination, he says : “She did not use the words I claim the $300 for myself. She simply said, I claim the benefit of the exemption. I concluded from that language, that she claimed it for herself. F. B. Húnsicker, a son of the defendant, testified, “I live witli my mother in Laurelton, Union County; my father does not make his home there. I was present when the Sheriff came to make a levy with an execution against my father. My father was working in Northumberland County at that time when the Sheriff came there with the execution on my father, he told us that he intended to make the levy, and he told us that we had the right to claim the $300. He said he did not know whether it would amount to anything for my mother to claim it, he said my father could, I told him we would claim it. for the benefit of the family. I told him that we did not care so much about the' personal property as about the real estate. Then we made the demand for the $300. I .said well, we will claim it for the benefit of the family, and she said we do. Then they appraised the personal property, I suppose that appears as the Sheriff’s return. We demanded the balance out of the real estate.” On his cross-examination, he stated: “We did not say father, but we claimed for the family, and I said we claimed it mother and I for the family.” He further testified that his father had not lived with them for twenty years, that he contributed to the support of the children, but not to the mother. The father, the def’t in the writ, testified that he owned the property, that he had not lived with his family for 20 years, but peirmitted them to dwell in the property, that he maintained the children, but did not support or co-habit with the wife. He also testified : “The Sheriff came to see me in my shop in Northumberland County, he told me that he had an execution against my property and that he was going to sell it, as near as I can remember, that ain’t the words. He asked me whether I was going to claim the $300 law, and I told him I thought I could not claim it, but my wife could, I thought that was the law.
    It is also in evidence that Mr. Mercer, att’y for Hunsieker, called on the Sheriff' some time after the levy was made and the appraisement held and told him that he had been over to see the defendant, and that to be sure, he, (Mercer,) and the defendant would make an additional demand. Subsequently to this on July 31,1882, Mercer, as the att’y for Hunsieker, made a written demand to the Sheriff for the benefit of the act.
    From this evidence the auditor finds that Hunsieker waived the benefit of the act, that his wife claimed for herself and not for him, and that the defendant is not entitled to the exemption. We cannot concur in this view, all the evidence in the case both record and oral fails to show that defendants waived the benefit of the act.' He was entitled to the claim although he did not live with his family. We concede that the wife could-not make the demand against the will of the husband, that the right to claim is vested exclusively in him. Concede that he did tell the Sheriff, he would not claim the benefit of the act, but his wife might. She did make the demand for the benefit of the family, the appraisement was held in pursuance thereof. The defendant ratified the demand made by her long before the advertisement and sale of the property. We can see no valid reason wby fie should be deprived of the benefit of this humane Act of Assembly. His declaration that he would not claim the benefit of the act was not binding upon him. It was without consideration; not in the nature of a contract, and could be recalled at his pleasure, Huffman vs. MeHermond, 1 Pittsburg 197.
    It looks to us from all the evidence that the wife was the agent of the husband to make the claim for him, and that she did so make it. This view does the plaintiff no injury. He has not been misled to his hurt by the declaration of the defendant to the Sheriff that he would not make the claim, nor has he been delayed one hour in the collection of his debt. It is not pretended that the plaintiff ever heard of the declaration prior to the sale of the real estate. The unequivocal demand was made by the defendant on the 31st of Jan’y, 1882 and the real estate was not sold until the 9th day of March, A. H. 1882. The proceeds paid the costs of the writ, and left a balance for appropriation of $526.17. Nothing remains except to make the appropriation.
    Fund in Court, - $536 17
    Deduct Costs of Audit, - - - - 74 51
    . $461 66
    Balance due Henry Hunsicker, the defendant, under his claim for exemption, - 290 00
    To D. B. Ilerst, on Yen. Ex. No. 19, Mar. Term, 1882 $171 66
    And now Sept. 18th, 1882, the exceptions are sustained and it is ordered and decreed that the fund in Court be appropriated as follows, to wit: Seventy-four 51-100 dollars to the costs of audit. Two hundred and ninety dollars to Henry Hunsicker or his attorney, and the balance one hundred and seventy-one 66-100 dollars to Daniel B. Kerst, or his attorney. The Prothonotary to pay out the fund unless an appeal be taken within 20 days.
    Kerst then appealed, complaining of the decree entered by the Court.
    
      
      Daniel W. Cox, Esq., for appellant
    argued, that the defendant never made any claim for the exemption; Mark’s Appeal, 34 Penn. 36; Nyman’s Appeal, 71 Penna. 447.
    
      H. H. Mercer and S. H. Orwig, Esqs., for appellee
    argued, that, when the Sheriff informed the defendant, he said that his wife might claim it, but did not expressly waive it. The claim for exemption under the statute, may be made in behalf of an absent” debtor, by his wife and counsel; Waugh vs. Burket, 3 Grant 319; McCarthy’s Appeal, 68 Penna. 217; Wilson vs. McElroy, 32 Penna. 82. One who has consented to a levy on exempt property may withdraw said consent before the day of sale Hutchinson vs. Campbell, 25 Penna. 273; Huffman vs. McDermond, 1 Pittsburg 197. The omission by the appraisers, to fill up the appraisement of the real estate, should not defeat the claim properly made.
   The Supreme Court affirmed the decision of the Court below, on May 21, 1883, in the following opinion:

Per Curiam.

The argument by the counsel, for the appellant, has failed to convince us that there is any error in the decree of the Court below. Moreover the opinion of the learned judge of the Common Pleas is so full and complete, upon both the law and the facts of the case, that we deem it unnecessary to attempt to add anything thereto. The appeal is dismissed, and the decree affirmed at the costs of the appellant.  