clare that the exemption shall not exist as against either of the copartners nor against the firm creditors,303 while in North Dakota and South Dakota a firm is allowed an exemption of a specific amount, but a several exemption is not conceded to each partner.

In those states wherein no exemption can be obtained out of partnership property the question must frequently arise, whether, on the dissolution of the partnership without the discharge of its obligations, the property which belonged to it continues subject to execution, though claimed as exempt. In Wisconsin it has been said that, even after a levy upon partnership assets, the partners were entitled to a reasonable time within which to sever their partnership interests, and thereupon to claim their exemptions.364 It should be remembered that in this state a partner is entitled, even during the continuance of the partnership, to an exemption in the property thereof, with the consent of his copartners. If one of the partners transfers to the other all of his interest in the firm property, so that the latter becomes the owner thereof in severalty, he is entitled, if the transfer was made in good faith, to the same exemptions therein as if it had always been his separate property.365 If, at the time of the transfer, the partnership was insolvent, it has been held, in one state, that the transfer must be adjudged, as a matter of law, to have been intended to defraud the firm creditors, and hence that it cannot be enforced against them, and therefore that the transferee has no right of exemption therein.366 We think, however, the better opinion is, that the dissolution of a partnership or the

863 Code Ala., § 2513.

864 Ladwig v. Williams, 87 Wis. 615.

365 Levy v. Williams, 79 Ala. 171.

366 Aiken v. Steiner, 98 Ala. 355, 39 Am. St. Rep. 58.

transfer of all the property thereof to one partner, even though with a view to entitle him or both of the partners to the privilege of the exemption laws, does not constitute a fraud upon their separate creditors or the creditors of the firm, and hence that, whenever the partnership relations cease, so that the legal title to the property is vested in the partners as tenants in common, or wholly in one as the transferee of the others, the right to hold such property as exempt from execution attaches, if it is of such a character that it might have been exempt had it never been partnership assets,367

§ 222. Head of a Family.-In many of the states, homestead and other exemptions are allowed to the "heads of families"; and the courts have frequently been required to discuss and decide the question, Who is entitled to the benefit of this exemption? In the dictionaries, a family is defined as being "the collective body of persons who live in one house, and under one head or manager; a household, including parents, children, and servants, and, as the case may be, lodgers or boarders." 368 But it is evident, from the decisions, that the word "family" has, in the exemption statutes, a signification somewhat different from that attributed to it in the dictionaries. In the first place, it is by no means essential that persons, to constitute a family, should reside in the same house. Thus, a man who has either a wife or a child dependent on him for support

867 Bates v. Callender, 3 Dak. 256; Goudy v. Werbe, 117 Ind. 154; Dennis v. Kass, 11 Wash. 353.

368 Webster's Dictionary; Parsons v. Livingston, 11 Iowa, 104; Zimmerman v. Franke, 34 Kan. 654; Arnold v. Waltz, 53 Iowa, 707, 86 Am. Rep. 248.

371

is the head of a family, although he does not reside under the same roof with them.370 This rule would probably not be applied where the separation of the members of the family is permanent in its character; nor where the head of the family resides in one state, and the other members of the family in another." A husband does not cease to be the head of a family while his wife and childen are temporarily absent. from the state.372 But if he does not live with his wife for a number of years, and has no children, he is not the head of a family.373 If he has minor children, however, whom he assists in supporting, or to whom he owes the duty of support, he remains the head of a family within the meaning of the exemption laws, whether he resides with them or not. Thus, if he has

374

been divorced, and the custody of the children of the marriage awarded to the wife, and they continue in her charge, still if he contributes toward their support, he is entitled to his exemptions as the head of a family, and the fact that the husband and father lives apart from his wife and children, has contributed nothing to their support for a long time, and generally has disregarded his obligations to them, does not deprive him of his character of the head of a family so as to forfeit his right of exemption.875

In the second place, it is quite possible for several persons to reside together in the same house, under

369 Barney v. Leeds, 51 N. H. 253; Cox v. Stafford, 14 How. Pr. 519.

370 Seaton v. Marshall, 6 Bush, 429, 99 Am. Dec. 683; Robinson's Case, 3 Abb. Pr. 466; Sallee v. Waters, 17 Ala. 482.

371 Allen v. Manasse, 4 Ala. 554; Abercrombie v. Alderson, 9 Ala. 981; Boykin v. Edwards, 21 Ala. 261; Keiffer v. Barney, 31 Ala. 192 372 State v. Finn, 8 Mo. App. 261.

873 Linton v. Crosby, 56 Iowa, 386, 41 Am. Rep. 107.

874 Roberts v. Moudy, 30 Neb. 683, 27 Am. St. Rep. 426. 375 Rogers v. Fox (Tex. App.), 16 S. W. 781.

one head or manager, without constituting a family within the meaning of the exemption statutes. This may happen where a man, having no wife nor children. lives in a house with his servants or other employés. Thus, where an unmarried man employed his brother and his brother's wife to live with him and take care of his house, he was held not, on that account, to be the head of a family. In this case the court said: "The head of a family primarily is the husband or father. One may be such head, however, without being either. Thus, the mother may become such on the death of her husband. So a son having mother and brother and sisters, or either, depending upon him for support, and living in a household which he controls, might be such head. And thus we might state many cases where the party claiming the exemption would be legally entitled to it, and still not be the husband or father. And yet in each case he must, for the purposes of this inquiry, stand in the place of the father. He must be the master in law of the family. In the case before us, the married brother and his wife in no proper sense belong to the family of the plaintiff. He had no control over them, except such as resulted purely and exclusively from contract. He had no right to exact obedience from them, or to direct their movements, except so far as their agreement bound them to take care of the house." 376 Where two or more persons are residing together, one of whom owes the duty of support and protection to the others; and they, on their part, are dependent on him and owe him the duty of obedience, and these correlative duties arise out of the status of the parties, and not out of a contract between them, other than the contract of marriage, 876 Whalen v. Cadman, 11 Iowa, 226.

there is undoubtedly a family. Hence, a husband and wife, if living together as such, though without children, servants, or other dependents, constitute a family.377 If the persons living in the same house owe these duties to one another because of some contract relation, as where one is master and the others servants or employés, they do not constitute a family.3

378

But it is by no means necessary that the relation of husband and wife, or parent and child, should exist in every case to constitute a family. One who has liv ing with him, and dependent on him for support, his mother, or brother, or sisters, is the head of a family, and, as such, entitled to the benefit of the exemption laws.379 That a son is the head of a family when his mother is living with him and dependent on him for support is unquestionable, for he owes her this duty.38 But, in many instances, persons live in the same house, looking to its master for support and protection, which he affords to them, though under no legal obligation to

377 Kitchell v. Burgwin, 21 Ill. 45; Cox v. Stafford, 14 How. Pr. 519; Brown v. Brown, 68 Mo. 388.

378 Whaley v. Whaley, 50 Mo. 577; Whithead v. Nickleson, 48 Tex. 530; Calhoun v. McLendon, 42 Ga. 405; Calhoun v. Williams, 32 Gratt. 18, 34 Am. Rep. 759.

879 Parsons v. Livingston, 11 Iowa, 104, 77 Am. Dec. 135; Wade v. Jones, 20 Mo. 75, 61 Am. Dec. 584; McMurray v. Shuck, 6 Bush, 111. 99 Am. Dec. 662; Marsh v. Lazenby, 41 Ga. 153; Connaughton V. Sands, 32 Wis. 387.

880 State v. Kane, 42 Mo. App. 253. In Ohio, where an exemption is allowed in favor of one who has a family, it was held that a debtor residing with his widowed mother and invalid brother, who were supported by him, did not fall within the protection of the statute. It is not clear from the opinion of the court whether it regarded such a person as not the head of a family, or whether It gave a peculiar and restricted signification to the words "has a family," and construed them to include those only who had relatives dependent upon them, or whom they were under obligation to support. Riley v. Hitzler, 49 Ohio St. 651.

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