Banfield v. Schulderman , 137 Or. 167 ( 1930 )

Charles C. Banfield filed a petition in the Probate Department of the Circuit Court for Multnomah county, Oregon, praying that lot 9, block 5, in Howe's addition to Portland, with the dwelling house thereon and its appurtenances, be set apart as his homestead.

The allegations of the petition are substantially as follows:

On March 26, 1913, the petitioner was intermarried with Marie Banfield, who died on February 2, 1928, an inhabitant of Multnomah county, and possessed of personal and real property, including the property above described, which, at the time of her decease and for ten years prior thereto, was occupied by petitioner and herself as their place of abode and was their homestead. In addition to her widower, the petitioner herein, she left surviving her as heirs and devisees a brother, a sister, two nieces, a nephew and a cousin, all residing in Portland. She left a will, wherein the petitioner was appointed executor of her estate, and, by an order entered on February 24, 1928, letters testamentary were issued to him. On or about March 28, 1928, an inventory of her property was made and filed, showing the appraised value of the estate to be the sum of $37,881.34, and the indebtedness $1,000. The petitioner alleged that no portion of the homestead property was necessary for the expense of the last sickness or funeral of the deceased, or of the costs and charges of the probate proceedings, and that no homestead had been established or claimed prior or subsequent to the death of decedent, save and except by petitioner.

In answer to the application for homestead, Henry J. Schulderman and Marie Schulderman, brother and niece of decedent, alleged that they were two of the heirs and devisees of the deceased and were seized of an interest in the real property described in the petition, which property was appraised at $5,000; that by the will of deceased a life estate in that property was devised to the petitioner, "and certain interests therein to said Henry J. Schulderman and Marie Schulderman." They denied that that property was, to the extent of $3,000, exempt from seizure and sale under execution in accordance with the laws of Oregon relating to homestead exemptions, and alleged that the homestead so claimed was subject to and chargeable with the expense of the last sickness and the funeral of the decedent and the costs of administration of her estate, and with the taxes assessed thereon. They further alleged that claims for these costs and expenses had been filed with the executor in the amount of $1,463.57, but that of this amount $375 were for expenses in a partition suit not properly chargeable to the estate. They alleged that the inventory was insufficient in a number of particulars not pertinent to the merits of this case. They averred that the petitioner was estopped from claiming the property above described as a homestead. They prayed that the petition of petitioner be dismissed and any and all relief denied him, "and/or that if a portion of said lot 9, block 5, Howe's addition, described in said petition, be set apart as the homestead of the petitioner to the extent of $3,000 in value thereof, that said property to said extent be decreed by this court to be subject to and charged with the sum of $1,397.20 for the expenses of the last sickness and/or for the funeral of the said Marie Banfield, and the costs and charges of administration of her said estate, and with any other sum that may be or become due on account of said last sickness, funeral and costs and charges of administration, and with the said sum of $66.37 due for taxes upon said property."

As a result of the hearing, the court ordered that the real property involved herein be set apart to the petitioner as a homestead, "upon the condition that he pay to Charles C. Banfield, executor of the estate * * *, the sum of $2,000 (amount found by the court to be the depreciation in value of the property for the alleged failure of petitioner to keep it in repair), said $2,000 to be administered as the other property of said estate."

From this decree, both the petitioner and the contestants appeal. Webster's International Dictionary defines "homestead" as:

"The land and buildings thereon occupied by the owner as a home for himself and his family, if any, and more of less protected by law from the claims of creditors. The right of exemption is purely statutory and does not exist in Great Britain, but is given by statute in nearly all the states of the United States."

The meaning of "owner," as used above, is set out in 2 A.L.R., 794, note, in the following language:

"The owner of a life estate in land, as well as the owner of the fee therein, may be considered as the owner within the meaning of the Homestead Act providing for the exemption from levy [of the land]."

The courts have often declared that homestead laws are enacted as a matter of public policy, in the interest of humanity: 29 C.J., 782. However, homestead statutes are subject to the established rules of construction applicable to all laws. When the import of words, either ordinary or technical, is obvious, plain and easily understood, there is no occasion for construction or interpretation: Waples, Homestead and Exemption, p. 2. That author likewise says, at page 109, that the owner of land for a lifetime occupying the premises lawfully is the lord of the manor while he lives.

Marie Banfield devised to her husband, the petitioner herein, a life estate in her real property. It is settled law in this jurisdiction that the holder of a life estate may have a homestead carved out of it. See Marvin Co. v. Piazza, 129 Or. 128 (276 P. 680). That the petitioner has title sufficient to support a homestead claim is established by the decisions of this court and in many other jurisdictions. See Marvin Co. v. Piazza, supra.

The petitioner bases his right to have the property herein set off as a homestead upon chapter 345, General Laws of Oregon, 1927. This chapter was House Bill No. 509, and was introduced by a capable attorney, to amend sections 225 and 226, Oregon Laws, and section 1234, Oregon Laws, as amended by chapter 263, General Laws of Oregon, 1923.

For an interesting and illuminating discussion of the homestead law, we direct attention to Leet v. Barr, 104 Or. 32 (202 P. 414, 206 P. 548); Slattery v. Newell, 115 Or. 22 (236 P. 268); Overland v. Jackson, 128 Or. 455 (275 P. 21); In reEstate of Brizzolari, 129 Or. 307 (275 P. 17). See, also, Oregon Code 1930, § 3-201, et seq. It is the duty of this court to apply the act in its entirety. Every section, sentence and word has a meaning; and the language of the act appears to be plain.

The Oregon Homestead Act (chapter 345, Gen. L. of Or., 1927) provides that the homestead shall be charged with the expenses of the last sickness and the funeral of the deceased, and the costs and charges of administration. By section 2 thereof, codified as Oregon Code 1930, § 3-206, § 226, Or. L., is amended to read:

"Section 226. Devise of Homesteads. When any homestead shall have been disposed of by the last will and the testament of the owner thereof, the devisee shall take the same free of all judgments and claims against the testator of his homestead estate, except mortgages lawfully executed thereon and laborers' and mechanics' liens; provided, however, that such exemption shall not extend to any devisee other than a child, grandchild, widow or widower, and father or mother of the testator; provided further, such homestead shall be subject to and charged with the expenses of his last sickness and of his funeral and the costs and charges of probate; and provided further, that nothing herein contained shall be construed as preventing or limiting the court or judge from setting apart for the widow, widower or minor children of the deceased the homestead as provided in section 1234, Oregon Laws."

By section 3 of the act, § 1234, Or. L., as amended by chapter 263, General Laws of Oregon, 1923, is amended to read:

"Section 1234. Upon the filing of the inventory, the court or judge thereof shall make an order setting apart for the widow, widower or minor children of the deceased, if any, all the property of the estate exempt from execution, according to exemption laws in effect as of date of death of deceased. The property thus set apart is the property of such widow or widower, to be used or expended by him or her in the maintenance of herself and minor children, if any; or if there be no widow or widower it is the property of the minor child; or if more than one child, then of the minor children in equal shares, to be used or expended in the nurture and education of such child or children by the guardian thereof, as the law directs."

By virtue of the foregoing act, it was the duty of the probate court, upon the filing of the inventory, to make an order setting apart for the widower the property of the estate exempt from execution, according to the exemption laws in effect as of date of death of deceased. However, at the time that the inventory was filed, no homestead had ever been established under the exemption law, and not until many months later did the widower conceive the notion of claiming a homestead in his deceased wife's property. This, however, is not a bar to his now claiming as exempt the property sought as a homestead.

This is not a proceeding to determine title to the house and lot involved herein. It is a proceeding to set off a portion of the decedent's estate as entitled to the privileges designated in the homestead exemption law. As appears from our statement, the petitioner is the devisee of a life interest in the real property of his deceased wife; and he, as her widower, is the only surviving person designated by the homestead exemption law as entitled to the exemption privilege. The court erred in requiring him to pay to the estate the sum of $2,000 in order to secure his exemption privilege. Claims against him arising out of his alleged negligence in caring for the estate should be determined in the proper forum. Moreover, a careful consideration of the record clearly shows that the value of the homestead property was not in excess of $3,000.

"The homestead right is a fee-simple interest, where an estate in fee supports it; but it is a life interest when supported by a life estate, and there is no inconsistency": Waples, Homestead and Exemption, p. 116.

It is hereby ordered that the petitioner herein shall take as his homestead the property described in his petition, subject to the expenses of the last sickness and the funeral of decedent, and the costs and charges of probate.

Neither party shall recover costs in this court.

BEAN, C.J., BELT and KELLY, JJ., concur.