Emma J. Cleveland's adm'r vs. Lyne, &c. JUDGE ROBERTSON DELIVERED THE FOLLOWING AS HIS SEPARATE OPIN ION: John Cleveland's will, proved ex parte, and recorded in the Woodford county court in the year 1853, gave a large estate to his only child, Emma, an infant, defeasible on the condition of her dying without issue; and, in that event, he dedicated the whole estate to the charitable use of the poor girls of Kentucky worth less than one hundred dollars. The probate was undisturbed by appeal or otherwise, until after Emma's death, childless and still an infant, in the year 1865. In 1868 her heirs appealed to the circuit court, and about the same time her administrator and heirs filed a petition in equity for a re-probate of the will. The circuit court required an election to dismiss one of those proceedings, and, under protest, the appeal was dismissed and excepted to. The court then sustained a demurrer to the petition. The petition gave the court no jurisdiction. The Revised Statutes, giving an appeal first to the circuit court in all cases of probate, do not allow a petition as previously allowable; but permit a petition in no case until after a decision by the circuit court on an appeal to it. (See 2 Stanton, page 468, on Wills, and Hughey, &c., vs. Sidwell's heirs, 18 B. Mon., 260.) The circuit court having no jurisdiction over the petition, might have dismissed it on motion, instead of unnecessarily requiring an election, and then at once. dismissing the petition on demurrer for want of jurisdiction, thereby showing that there was no occasion for any election. Nevertheless, if the record also show that the appeal to the circuit court must be equally unavailable, the Emma J. Cleveland's adm'r vs. Lyne, &c. erroneous requisition of election, resulting in the compulsive dismission of the appeal, would have done the appellants in this court no harm; and, therefore, we should not disturb the judgment only to prolong hopeless litigation. The counsel for the appellees assume that the appeal to the circuit court is barred by the limitation of five years; but this we cannot adjudge. The statute had not been pleaded, and we cannot know that it ever will be; and, should it be hereafter pleaded, it is not five years regardless of disabilities, but is the same as to time and disabilities as in appeals to this court. (See article 2, section 22, page 8, Code of Practice, and section 884, same.) Then, as Emma Cleveland might, for the purpose of making her estate absolute as only heir, instead of defeasible as devisee, have appealed within a year after she became twenty-one years of age; and her successors had the same right. The record, however, fails to show Emma's precise age when she died; and, therefore, had she survived and appealed when the appeal was taken by her heirs, though it may be probable that the bar would have operated, yet this court cannot now judicially know either that the limitation would have been pleaded, or have been available if pleaded. Nor can we know, that if the appeal should be reinstated, and the cause remanded, the statute would be availably pleaded. It is clear that the circuit court, having no jurisdiction of the petition, there was only one case judicially pending in that court; and it is, consequently, equally clear that there was no authority to compel an election; and, therefore, for the apparent error in forcing the election, and consequent dismission of the appeal, the judgment ought 5bu392 106 706 Marsh vs. Alford and wife. to be reversed, and the cause remanded for a reinstatement of the appeal, however, on further proceedings, it might eventuate. This court should not assume to plead the statute for the trustees, and supply the requisite facts left out of the record. CASE 21-PETITION EQUITY-JUNE 22. Marsh vs. Alford and wife. APPEAL FROM LINCOLN CIRCUIT COURT. 1. 2. The homestead exemption act, which took effect June 1, 1866, does not H. T. HARRIS, CITED 17 B. Mon., 555; Burgen vs. Forsythe. 2 Met., 508 and 521. 2 Met., 253; Pell vs. Cole. 3 Met., 334, 335; Marshall vs. Miller. For Appellant, 15 B. Mon., 234; McMillen vs. L. R. R. Co. 16 B. Mon., 439; Civil Code, secs. 153, 161, and notes. Marsh vs. Alford and wife. MS. Opn., Botts & Barbour vs. Moss's adm'r, Myers' Homestead Act, Myers' Sup., pp. 714, 715. JUDGE HARDIN DELIVERED THE OPINION OF THE COURT: The appellant, who was the plaintiff in this action, exhibited with his petition a promissory note, executed by the appellees, J. P. Alford and Martha C. Alford, his wife, for ninety dollars and forty cents, dated the 6th day of November, 1866, and payable one day thereafter, to S. F. Ames, who assigned it to the plaintiff, and sought to recover a judgment, subjecting to his claim a house and lot of Mrs. Alford's, on the alleged ground that the consideration of the note was lumber sold and furnished to the defendants by Ames, to be used in building said house; and that the same, which was so used, was necessary for the use of Mrs. Alford and her family. The defendants, by their answer, admitted the execution of the note, and that it was given to Ames for lumber; but denied that the lumber was used in building the house, or that it was necessary for the comfort of defendants' family, and alleged that the lumber was used by them in making repairs and additions to said property. They further alleged that the entire property was of less value than one thousand dollars, and claimed the protection of the act of February 10, 1866 (Myers' Sup., 714), the first section of which provides Marsh vs. Alford and wife. "That, in addition to the personal property now exempt from execution, on all debts or liabilities created or incurred after the first day of June, one thousand eight hundred and sixty-six, there shall be exempt from sale under execution, attachment, or judgment of any court, except to foreclose a mortgage given by the owner of a homestead, or for purchase money due therefor, so much land, including the dwelling-house and appurtenances owned by the debtor, as shall not exceed in value one thousand dollars." The court having adjudged that the property was exempt from the plaintiff's claim, he has appealed to this court. Although the note was executed after the first day of June, 1866, it sufficiently appears from the evidence that the lumber was furnished by Ames in the winter or spring before. The note, therefore, was merely an undertaking to pay a pre-existing debt, and its execution did not destroy the legal rights of the creditor which attached to it as an existing liability before the first of June, 1866. (Lowry vs. Fisher, &c., 2 Bush, 72.); and, in our opinion, the debt was not subject to the exemption provided in the act of 1866. But a further inquiry arises, whether the act of February 17, 1858, providing a lien in favor of mechanics and material men (the provisions of which were extended to Lincoln county by an act approved the 6th day of February, 1863, Myers' Supplement, 306), is applicable to this case. The debt was created in Lincoln county, where the parties resided; but the fact is disclosed by the pleadings that Mrs. Alford was a feme covert when the lumber was furnished, as well as when the note was executed; and although it appears that the lumber was necessary |