R. E. Alexander, Administratrix, and others, Appellants, vs. James M. Kilpatrick, Appellee, 14 Fla. 450

RANDALL, C. J., delivered the opinion of the Court. This was a case submitted “ without action ” under the provisions of the Code, (section 308,) to the Circuit Court for Jefferson county. Kilpatrick claims that all the personal property of a defendant is liable to be levied upon by virtue of an execution issued upon a judgment rendered in April, 1868, while the exemption act of 1866 was in force, and before the adoption of the more liberal exemption in the Constitution of 1868-Mrs.

Alexander, as administratrix, and in behalf of herself as the widow, and in behalf of her children, heirs of the now deceased debtor, claims, 1 — that sheis entitled to administer the property so levied on j 2 — that she and the children as heirs are entitled to an exemption of the property under the Constitution of 1868, or, if not, then under the act of 1866. It has been held in several cases by the Supreme Court off the United States, and very pointedly in the recent case off Gunn vs.

Barry, 15 Wallace, 610, that the remedy provided by law at the time of making a contract enters into and forms a part of the contract, and that no State has the right to-impair the remedy by a sweeping exemption, as that would impair the obligation of the contract. In the case at bar the plaintiff had his judgment before the Constitution of 1868, and was therefore entitled to make-his money out of any property not exempted under the law of 1866.

The provisions of the State Constitution, therefore., as they would exempt all the property of the judgment debt- or, are in violation of the Constitution of the United States, so far as they seem to extend the more liberal exemption of property from levy and sale upon a judgment obtained before its adoption.

The Constitution of 1868, and the acts of the legislature' on the subject of exempting property from levy and sale under execution, do not, either expressly or by implication, repeal the law of 1866, which confers a more limited exemption, for we cannot infer that it was the intention of the legislature to abrogate all right to claim an exemption as to then existing indebtedness, unless they expressly so declare, which they have failed to do. The Constitution of 1868 intended to enlarge the privilege of claiming exemptions and not to deprive parties of it where it already existed in a more limited provision.

The defendant in execution had, therefore, in his life-time, a right to claim the benefit of the exemptions allowed by the law of 1866,

Chapter 1481. But it is claimed that the defendant in the execution did not comply fully with the law of 1866, and therefore was not entitled to its benefits. It is true that he did not comply with that law as strictly as he might have done, but it seems that he did claim an exemption in substantial form; made oath to an inventory of “ the whole of his personal propertythat it was appraised by three disinterested persons selected by the sheriff, and the sheriff then released the property as exempt from levy. "What more could be required of the defendant after his object was accomplished?

After the levy was discharged, the sheriff again levied upon it or the greater part of it, and within ten days thereafter the defendant died without having again claimed an exemption. But whether the proceeding in the first instance was, or was not, a strict compliance with the requirements of the law, we do not think the widow and heirs of the defendant are deprived of the right to claim the exemptions allowed by the act' of 1866. It may be said that by that law the right to claim an exemption in personalty did not survive to the heirs.

This is true if that act stands alone, but we are at liberty to extend tbe right to them by the third

section of the ninth

article of the Constitution of 1868, -which provides that “ the exemptions provided for in sections 1 and 2 of this

article shall accrue to the heirs of the party having enjoyed or taken the benefit of such exemption;” The first

section included and enlarged the exemption provided in the act of 1866, and though we cannot allow the enlarged exemption, as before said, yet we can extend it to the family of the defendant without infringing the rule of the inviolability of the remedy. When the judgment was recovered' it did not bind the defendant’s personal property which he might claim as exempt, and a legislative act extending the same exemption to the heirs would deprive him of no remedy which he had possessed and no right he had acquired.

And in consideration of the humane, as well as the lawful purpose and intent of the framers of the Constitution and laws in reference to the subject, we are of the opinion that the heirs of the defendant in the execution may now claim such exemption as the defendant had.“enjoyed or taken” in his life-time. The claim of Mrs. Alexander as administratrix cannot be sustained. The property having been levied upon and being-in the hands of the sheriff, must be subjected to the payment of the execution, except so far as it may be exempt on claim of the heirs of the defendant.

The death of the debtor does not change the status of the property levied upon. The order of the Circuit Court subjecting- all the property in question to sale by virtue of the execution, notwithstandtlie exemption claimed under the law of 1866, is reversed.