
    In re LOGAN.
    No. 3078.
    District Court, S. D. Mississippi, Jackson Division.
    Oct. 1, 1932.
    L. A. Smith, of Hattiesburg, Miss., for petitioner.
    Powell, Harper & Jig'gitts, of Jackson, Miss., for the trustee.
   HOLMES, District Judge.

The bankrupt, a married woman, living with her husband, claimed as exempt, in the schedules filed with her petition in bankruptcy, certain shoes of the asserted value of $250. The shoes were part of a stock of goods in the People’s Store owned by her. By agreement they were sold by the trustee for $465 and her claim transferred to the nroeeeds.

From the date she purchased the store until the present time, Mrs. Logan has been in ill health, and, due to her physical disability, employed her husband at a salary of $150 per month to manage the business. This he has done during the entire period of her ownership. Her claim, under section 1766 of the Mississippi Code of 1930, was denied by the referee on the ground that she was not the head of a family. The matter comes up on a petition to review the order of the referee.

The Bankruptcy Act does not affect the allowance to bankrupts of exemptions, which are prescribed by the state laws, in force at the time of the filing of the petition in the state wherein they have had their domicil for the six months, or the greater portion thereof, immediately preceding the filing of the petition. Section 6 of the act, 11 USCA § 24. It is the duty of the trustee to set apart the exemptions, and report to the court the items and estimated value thereof as soon as practicable after his appointment. Section 47a (11), of the act, 11 USCA § 75 (a) (11).

The pertinent part of the state law is as follows: “1766. Exempt property■ — limitation on character of personal property to he exempt. — Every citizen of this state, male or female, being a householder and having a family, shall be entitled to hold exempt from seizure or sale under execution or attachment the land and building owned and occupied as a residence by such person, not to exceed in value, save as hereinafter provided, three thousand dollars, and personal property to be selected by him or her not to exceed in value two hundred and fifty dollars or the articles specified as exempt to the head of a family. * * * ” Section 1766, 'Code 1930.

The bankrupt is unquestionably a female citizen of this state, but is she one, “being a householder and having a family?” We are bound by the construction placed upon the statute by the state court of last resort.

In Pearson v. Miller (1893) 71 Miss. 381, 14 So. 731, 42 Am. St. Rep. 470, in a claim for exemption of personal property, the court construed these words (then in section 1249, Code 1880) as follows: “A householder having a family may be characterized as the head of a family occupying a house, and living together in one domestic establishment.” The definition is approved in George v. Adams, 146 Miss. 308, 315, 111 So. 829, 830. In an early ease, in connection with the qualifications of a juror, the court said that the term householder “means a person who has a family, whom he keeps together and provides for, and of which he is the head or master.” Nelson v. State, 57 Miss. 286, 288, 34 Am. Rep. 444. The decisions are in accord with the general rule. 21 Cyc. 1113; 11 R. C. L. 502; see, also, Black’s and Bouvier’s Law Dictionaries.

It cannot he seriously contended that Mrs. Logan is the head of the family. She furnished the money to buy the store, but, after making this investment, she did nothing more. It is the general rule that the husband, and not the wife, is primarily the head of the family. Ness v. Jones, 10 N. D. 587, 88 N. W. 706, 88 Am. St. Rep. 755; Barry v. Western Assurance Co., 19 Mont. 571, 49 P. 148, 61 Am. St. Rep. 530; 25 Corpus Juris, pages 23 and 27; 11 R. C. L. page 503, § 14. See, also, notes to Wike v. Garner, 70 Am. St. Rep. 102, 107, and Wade v. Jones, 61 Am. Dec. 584, 586. There are no special circumstances to take this case out of the general rule. Instead of tending to rebut it, the evidence rather confirms the presumption that the husband here is really the head of the family. In Powers v. Sample, 72 Miss. 187, 16 So. 293, 294, the court said: “There cannot be two heads to the family, and if the appellee was the householder, the son was not.”

There woiúd be no difficulty but for the case of Partee v. Stewart (1874) 50 Miss. 717 (followed two years later in Hand v. Winn, 52 Miss. 784), wherein, under the prototype of our present statute, the court held that the wife was privileged to claim an exemption in the “land and buildings” occupied with the family, including her husband, as a residence. The court placed its decision partly upon the ground that the exemptionist was not entitled to make a selection of the homestead when several tracts are owned by the debtor, but that the law confined it to a particular one. It said: “When several separate tracts of land are owned by the debtor, the privilege of making a selection of the homestead does not exist; the law confines it to the parcel upon.which the family reside, and have their domicil. Occupancy and domicil confer the privilege, which may be lost, by a removal, and acquisition of domicil elsewhere. Thoms v. Thoms, 45 Miss. 275.”

The difference between the exemption of a homestead and of personal property is that in the former case the law makes the selection while in the latter it permits the head' of the family to make it. There is nothing here to show that the husband is not entitled to claim or has not claimed, as exempt, household furniture or the other specific articles allowed as exempt to the head of a family. The state law only prescribes one allowance for each family, not for each member thereof. In the case of a homestead, the law fixes it as the land and buildings upon which the family resides, and, when both the husband and wife are occupying it, in marital accord, the court is not called upon to inquire which of the two holds the title or to make nice distinctions to determine who is the real head of the family, but, there being no possibility of each claiming a separate homestead, may regard such questions as immaterial in the circumstances, as exemption laws are to be liberally construed. In the case of personal property, the householder having a family is entitled to select the exemption from various articles or different species of property, and a person claiming the privilege to exercise the option must be one of the class to which the description applies.

In this case the wife is living with her husband, and he is the householder having a family who is vested with the discretion and is entitled to make the selection of personalty which the law provides shall be exempt from seizure or sale under execution or attachment. This view gives a construction of the above section harmonious with section 1755, Code 1930, which allows certain articles specified as exempt to “each head of a .family, to be selected by the debtor.” It is not conceivable that the Legislature intended to grant the exemption in one instance and to deny it in the other.

The decision of the referee is affirmed.  