
    Hart & Company v. Cole.
    
      Property exempt from levy — Section 5441, Revised Statutes— Judgment debtor may exempt from/ execution property to value of five hundred dollars, when — Rxemptor after former exemption allowance may again claim exemption, when— Law of exemptions.
    
    1. Every judgment debtor, entitled to the exemption allowed by section 5441, Revised Statutes, may, at all times, keep in possession and hold exempt from levy and sale, real or personal property, to be selected by such debtor, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted.
    2. A judgment debtor who has once claimed her exemption under section 5441, Revised Statutes, and has had the same set off and allowed to her, may thereafter, notwithstanding such former allowance, again claim her exemption against the same judgment out of other property; subject however to the limitation that a judgment debtor may not at any one time hold exempt, in lieu of a homestead, property in excess of five hundred dollars in value, in addition to the chattel property otherwise by law exempted.
    (No. 9418
    Decided February 2, 1906.)
    Error to the Circuit Court of Auglaize county.
    Because of the incompleteness of the record in this case, a comprehensive statement of the facts, upon which rests the question we are herein asked to determine, is attended with some difficulty. However, the following is perhaps sufficient to indicate the real question presented, and to show the manner in which such question arises. On January 30, 1896, by the consideration of the court of common pleas of Auglaize county, Ohio, the plaintiff in error, Hart & Company, recovered a judgment against the defendant in error, Hattie Cole, for about the sum of five hundred and- sixty-five dollars. Sometime during that year, — 1896,—the exact date not being shown by the record, Hattie Cole made a voluntary assignment for the benefit of creditors. In the administration of said assignment in the probate court of Auglaize' county, and after judgment had been obtained against her by Hart & Company, she applied for and was allowed by said probate court, as against said judgment, an exemption of five hundred dollars in lieu of a homestead. The judgment of Hart & Company, without satisfaction thereof, in whole or in part, was permitted to become dormant. Thereafter, to-wit: on the twenty-fifth day of August, 1902, by proper proceedings in the court of common pleas of Auglaize county said dormant judgment was duly revived. December 2, 1902, execution was issued on said revived judgment in favor of Hart & Company, which execution for want of goods and chattels of the .defendant Hattie Cole, was on December 3,1902, levied upon her undivided one-seventh (1-7) interest in certain real estate which came to her by inheritance from the estate of her deceased brother Daniel Gill, whose estate at that time had not been fully settled. Subsequently John T. Schoonover, who had been duly appointed administrator of the estate of Daniel Gill deceased, as such administrator filed his petition in the probate court of Auglaize county, asking for an order to sell said real estate so levied upon, to pay the debts of his decedent. In this proceeding Hart & Company, by leave of court, became a party defendant and filed an answer and cross-petition setting up the lien acquired by it against the interest of Hattie Cole in said real estate, and praying that an account be taken of the amount due upon its judgment against said Hattie Cole, and that upon sale of said real estate, her interest in the proceeds arising therefrom be applied to the payment of its said judgment. To the cross-petition of Hart & Company, Hattie Cole filed her answer, and also made due demand for the allowance to her out of the proceeds of said sale, of the sum of five hundred dollars, by way of exemption in lieu of a homestead. Upon the hearing of her said application for exemption, it was, by the probate court: “ordered, adjudged and decreed that the ■said John T. Schoonover, as administrator of the estate of Dan Gill deceased, out of the moneys in his hands as such administrator, pay to the said Hattie Cole out of her distributive share, as an heir at law of the said Dan Gill deceased, the sum ofvfive hundred dollars ($500) if the amount in his hands is sufficient therefor, in lieu of such homestead.” To this judgment, order and decree of the probate court, Hart & Company excepted. The real estate was sold, and it was ascertained that the distributive share of said Hattie Cole in the proceeds arising from such sale, was $470.90. Hart & Company appealed to the court of common pleas; that court ordered and directed that said sum of four hundred and seventy dollars and ninety cents ($470.90) he paid to Hart & Company to he applied on its claim and lien against said Hattie Cole, which claim and lien the court found was “paramount and superior to the homestead and exemption rights of the said Hattie Cole. ’ ’ Hattie Cole prosecuted error to the circuit court. The circuit court reversed the court of common pleas, and thereupon rendered judgment as. follows: .
    “And the court further proceeding to render such judgment, as the said court of common pleas of Auglaize county, upon the undisputed facts ought to have rendered, find that the plaintiff in error, Hattie Cole, is a married woman and resident of Ohio and not the owner of a homestead, and is entitled to an exemption in lieu of a homestead, in the sum of five hundred dollars ($500), payable out of the fund, in the hands of the administrator of Dan Gill, deceased.
    “It is therefore considered and ordered by the court, as against the defendant in error, that the administrator pay to the plaintiff in error, said sum of five hundred dollars ($500), as her allowance' in lieu of a homestead, and that the plaintiff in error, Hattie Cole, recover costs against the defendant in error, Hart & Company, and judgment is hereby awarded for said costs, in the sum of--— dollars.
    “It is further ordered that a special mandate be sent to the court of common pleas of Auglaize county for execution of this judgment.
    “To which finding, order and judgment, the defendant in error, Hart & Company, by its counsel excepts.”
    To reverse this judgment of the circuit court Hart & Company prosecutes the present proceeding in error.
    
      Messrs. Gulliton & Smith, for plaintiff in error.
    
      Mr. John T. Schoonover, for defendant in error.
   Crew, J.

The fund in controversy in this case is less than five hundred dollars, and it is conceded that the defendant in error Hattie Cole, is entitled to the whole of said fund as and for her exemption in lieu of a homestead, unless she has by some positive act, precluded herself from so claiming it. It is the contention of counsel for plaintiff in error, that said Hattie Cole having heretofore, in 1896, claimed, and been allowed, an exemption of five hundred dollars in lieu of a homestead as against the judgment of Hart & Company, that therefore, she is now estopped from claiming another allowance, out of other property, against the same judgment. This claim we think is without merit, and cannot prevail. We are not concerned in this case about the question of whether the revived judgment, against which defendant in error now claims her exemption, is the same judgment against which she claimed and was allowed her exemption in 1896; for whether it is, or is not, we are of opinion that such former allowance is no bar to her right to have ■the exemption claimed by her in the present case. Section 5441, Revised Statutes, provides that: “Husband and wife living together, a widower living with an unmarried daughter or minor son, every widow and every unmarried female, having in good faith the care, maintenance and custody of any minor child or children of a deceased relative, resident of Ohio, and not the owner of a homestead, may, in lieu thereof, hold exempt from levy- and sale, real or personal property to be .selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred ($500) dollars in value, in addition to the amount of chattel property otherwise by law exempted.” By this statute, the extent of the exemption allowed in lieu of a homestead, is fixed at five hundred dollars. Subject to the limitation thus imposed, the statute confers upon the several persons within it^ provisions, the absolute right, at all times, to hold exempt from levy and sale, real or personal property to be selected by such person, not exceeding in value said amount. Any judgment debtor, embraced within the provisions of this statute may invoke its protection, and may select and retain, free from seizure or sale upon legal process, property to the amount and value of five hundred dollars; and this he may do whenever, and so often, as attempt is made to subject such property to the payment of his debts. When exemption has been once claimed, and property to the value of five hundred dollars has been selected and set off to the judgment debtor, so long as such property is retained by him undiminished in value, he is, of course, without right to further exemption. But where the property so set off and allowed to him has been consumed, or used by the judgment debtor in the maintenance and support of himself and family, — which is but the rightful application of such exempt property to its intended use, — to deny to him the right of subsequent exemption, merely because of such former allowance, would require, we think, a construction of the statute that is contrary to its letter and spirit, and wholly subversive of its purpose and design. Freeman on Executions, sec. 212; Thompson on Homestead and Exemptions, sec. 857; Krauter’s Estate, 150 Pa. St., 47; Weis v. Levy, 69 Ala., 209; Chatten v. Snider, 126 Ind., 387; Frost v. Naylor, 68 N. C., 325.

In Freeman on Executions at section 212, page 1100, the author says: “If at different times, writs of execution are issued on the same judgment, the defendant is entitled as against each, to the benefit of the exemption laws existing at the date of the respective levies, and a levy under writ in disregard of a claim of exemption cannot be justified upon the ground that when a prior writ was issued on the same judgment, the defendant claimed, and had set apart to him, the full amount to which he was then entitled. If he has disposed of such property he cannot he required to account for it, and his claim for exemption must be treated as though he had never before had the benefit of his exemption privileges.”

In Krauter’s Estate, supra, it was held by the supreme court of Pennsylvania, under a statute of that state allowing an exemption of three hundred dollars, that a debtor to whom such exemption had been allowed and set apart, might again claim his exemption against the same judgment, out of other property, where the former exemption had been consumed. Justice Heydrick, in the opinion in that case, referring to the exemption statutes said: “In their spirit these humane laws secure to the unfortunate honest debtor at all times the use and enjoyment of three hundred dollars worth of property if he have so much. But to hold him confined for all time to the goods once selected and appraised, or to the money exempted, or to the property into which either may have been converted, might soon leave him without anything. If the goods or money should not be consumed in living, the former would in time undoubtedly depreciate in value, and the same improvidence that made or kept the debtor poor would ordinarily leave him little to represent that which he might attempt to barter or invest. ’ ’

In the present case, the defendant in error Hattie Cole, claimed and was allowed, in 1896, an exemption of five hundred dollars in lieu of a homestead. Of the amount then allowed to her she received at that time two hundred and twenty-five dollars, but whether she ever received more than that sum, the record does not disclose. In 1902, six years, later, on the death of her brother Daniel Grill, she inherited from his estate, property to the amount and value of four hundred and seventy dollars and ninety cents. She was at this time fifty-two years of age, was not then the owner of other property either real or personal, and she was, unless precluded by the former allowance six years earlier, clearly entitled to hold said property exempt from the claim and lien of Hart & Company who was seeking to subject it to the payment of its judgment. No authority is cited by counsel for plaintiff in error in support of the claim made by them in their brief: “that after property is once set off in lieu of a homestead, and by reason thereof exempt from levy and sale, the law contemplates that the applicant will maintain it, or in any event that the applicant will not be permitted after it is gone, to claim other property in lieu of a homestead, at another time.” The claim thus made would seem to be in such direct conflict with' all the authorities up op that proposition which we have been able to find, and is so inconsistent with the humane policy and purpose of our exemption laws, that it is, we think, utterly untenable. It is the well settled rule in Ohio, that the homestead and exemption laws of this state are to be liberally construed in favor of the claimant. Sears v. Hanks, 14 Ohio St., 298; McConville v. Lee, 31 Ohio St., 447. When we consider then, that the primary purpose of allowing an exemption in lieu of a homestead, is to provide the debtor with present means for the support of himself and family, and that ordinarily, only by the conversion or consumption of the property so exempt, can it be made to inure to the benefit of those for whose use it is intended; we must conclude, that we but advance the intention of the legislature, when, in the present case, we construe above section 5441, Revised Statutes, as requiring us to hold, that the exemption allowed the defendant in error, in 1896, is no bar to her present claim.

Judgment affirmed.

Davis, C. J., Shauck, Price, Summers and Spear, JJ., concur.  