Overland v. Jackson , 128 Or. 455 ( 1928 )

There is no dispute about the facts involved. The case presents squarely the question of whether or not the courts of probate in this state had authority September 24, 1925, to set aside a homestead as exempt to the surviving husband. The judgment of the lower court is to the effect that the order setting aside the homestead in the instant case was without jurisdiction. Section 1234, Or. L., not only authorizes the County Court to set aside the exempt property but makes it its duty so to do. The owner of this land in fee, Julia E. Jackson, died prior to the enactment of that statute. The amendment to Section 1234 adopted in 1923 antedates the decease of said Julia E. Jackson.

The homestead exemption law has been a fruitful source of litigation since the original act was passed in 1893. This court held that that act entitled the probate court to set aside as exempt the homestead of decedent which order passed the title in fee to the widow: In re Frizzell's Estate, 95 Or. 681 (188 P. 707); Wycoff v. Snapp, 72 Or. 234 (143 P. 902). Evidently the legislature intended to change the law in that regard by its repeal of the 1893 statute and enacting another homestead law in 1919. The later act was construed in Leet v. Barr, 104 Or. 32 (202 P. 414, 206 P. 548), so as to subject the homestead exemption to disposition of the land by will. See, also,Ferguson v. Holborn, 106 Or. 566 (211 P. 953), andSlattery v. Newell, 115 Or. 22 (236 P. 268). The legislature was not satisfied with the law as construed in Leet v. Barr, above, and again amended Section 1234, Or. L., in 1923. Later, in 1925, Slattery v. Newell, above, was decided. Again the legislature thought it necessary to amend the statute relating to homestead exemptions, doubtless as a result of the language in the opinion of this court in Slattery v. Newell, and amended Sections 225, 226 and 1234 in 1927 in the same act: Gen. L., Chap. 345.

Said Sections 225 and 226 still contain the provisions making the homestead subject to disposal by will and subject to the general laws of descent and distribution. There is no necessary conflict between these provisions and the provisions of said Section 1234. A tract of land may well be subject to homestead exemption and at the same time descend to the heirs of the decedent. The instant case is a good example of why the two provisions apparently conflicting are not necessarily antagonistic. Julia E. Jackson, long before she became his wife, was the owner of the tracts of land claimed as a homestead by her surviving husband. That land descended to her heirs at law immediately upon her decease, subject either to the curtesy of the surviving husband or his homestead interests therein. She having died intestate the title in fee of that property pursuant to Section 225 vested at once in her heirs at law, plaintiffs herein. Her surviving husband by virtue of Section 221 et seq., had a lawful claim to the tracts of land as his homestead. He exercised that right by claiming the land as a homestead and by occupying the same as such. "When he shuffled off this mortal coil" he could no longer use the homestead. He could no longer occupy it. The heirs at law of the said Julia E. Jackson, deceased, thereupon became entitled to the absolute and exclusive possession thereof, freed from all claim of said C.C. Jackson and all persons claiming through him. His interest in said property whether by curtesy or by reason of the homestead exemption was only a life interest. His heirs had no claim whatever to the property.

A canon of construction is that all statutes regarding the same subject matter should be read together and effect given to every word, phrase, sentence and section of all of said statutes, if that be possible: 1 Lewis' Suth. Stat. Const. (2 ed.), 467, n. 45, Id., p. 526 et seq., §§ 274-278; 2 Lewis' Suth. Stat. Const., 665 et seq., § 348, Id., p. 706 et seq., §§ 368, 369, 370, 380, Id., p. 844 et seq., §§ 443-449; 25 R.C.L., p. 1004 et seq., §§ 246-248; 36 Cyc. 1146 et seq.; Taggart v. School Dist. No. 1,96 Or. 422, 427 (188 P. 908, 1119); Benson v. Withycombe,84 Or. 652, 658 et seq. (166 P. 41); Winslow v. Fleischner,112 Or. 23, 26 (228 P. 101, 34 A.L.R. 826). The construction we have placed upon these several statutes give effect to all parts thereof and does no violence to any part thereof. We think that the legislature intended by its several acts to give to the homestead exemption the place to which we have assigned it in this opinion. This construction also carries out the beneficent purpose of homestead exemptions. Whether or not it was wise to give to a surviving husband with no minor children a homestead exemption from his deceased wife's real property is not for us to determine. If the probate court was without jurisdiction to set aside the homestead exemption to C.C. Jackson in the instant case, then it would have been without jurisdiction if the said Julia E. Jackson had died leaving minor children and a husband. A probate court would be without jurisdiction should a husband die leaving no property at all except a humble home, a widow and minor children. The same sentence which provides the homestead for the surviving husband provides also for the widow and minor children. Whether or not the homestead exemption should extend as far and be as broad as it is must be determined by the legislature. We must construe the law as we find it. By the construction we have adopted we add nothing to nor subtract anything from the statute as enacted by the legislature. We simply construe the law so as to give effect to the beneficent purpose of the legislature. The court reached the correct conclusion by adjudging and decreeing the plaintiffs to be the owners of the land in fee, but its conclusion that the probate court was without jurisdiction to set aside a homestead as exempt was erroneous.

It is true that under the original homestead act this court held that real property set aside as exempt became the property in fee of the beneficiary: Wycoff v. Snapp, above. But that law was repealed by the act of 1919: Leet v. Barr, Slattery v. Newell, above. The incorporation of the provisions in the act of 1919, making a homestead exemption subject to devolution as other real property and the retention of that future in the subsequent amendments, makes clear the legislative intent that real property of an intestate descends to his heirs though it may be subject to homestead exemption. The homestead exemption becomes more nearly like curtesy or dower. It has the additional quality of being exempt from execution, but it does not of itself pass the fee title. Julia E. Jackson being the owner of the real property at the time of her death by virtue of the act of 1919 and the amendments thereto, the title thereto passed to her heirs at law. The surviving husband, C.C. Jackson, by virtue of claiming it as a homestead exemption acquired only a life estate therein. A homestead exemption is property of the same nature as curtesy and dower.

Confusion results from treating homesteads as synonymous with title. One must be the owner of the title to land in this state before he can have a homestead therein. He must both own and occupy the land: Or. L., § 221. A homestead is "`An artificial estate in land, devised to protect the possession of the owner against the claims of creditors while the land is occupied as a home': Buckingham v. Buckingham, 81 Mich. 89, 92 (43 N.W. 504, 505)"; 29 C.J. 782.

"A homestead possesses none of the essential requisites of a conveyance; it is merely a right or privilege given by constitutional or statutory provisions.

"It is a purely personal right which can be exercised only for the benefit of the debtor and his family.

"The homestead provisions do not create a new title, or disturb the fee simple title or equitable title in the land itself. Nor do they strengthen or enlarge the title already existing. Only the use of the property is changed, and not the title itself." 29 C.J. 783, 784.

Sometimes the word "homestead" refers only to the exempt property attached to the title. The meaning must be determined, as in other cases of general words, from the context.

It is now argued that Section 1234 which provides for setting aside all property exempt by law has no application to homesteads. By that contention the word "all" is given no effect at all. It is also argued that because the word "expend" is used in connection with the use of the exempt property the section can have no reference to homesteads because a homestead descends to the heirs and therefore cannot be expended. But the statute reads "use and expend." The fact that more than one verb is used where there are numerous subjects does not require that every verb shall exactly fit every subject. A verb appropriate for any one subject may be properly used though it is not suited to every subject. There is no trouble in having the beneficiaries of exempt property using the homestead. Expend does not necessarily mean to sell but may mean use as "one expends his energy." An examination of the section also clearly expresses the idea that only the exemption is set apart. The language is "all the property of the estate by law exempt from execution": Gen. L. 1923, Chap. 263. Now, the property which is exempt is the homestead only. The land itself is exempt only while that homestead exists on it. The homestead exists only as long as it is occupied as such: Or. L., § 221. If it were not that the statute so provided the exemption of a homestead would cease with the death of the owner: 29 C.J. 994, § 470. The statute extends its benefits after death of the owner to the members of his family mentioned in said Section 225. The homestead exemption does not extend to an heir who is a collateral kindred of the decedent. Said Section 225.

Another reason for considerable confusion is that in most instances the land descends by law to the identical persons entitled to the benefits of the homestead exemption, that is to the children of the decedent and the surviving spouse. Land subject to a homestead would descend to the children just as land not subject to a homestead. The land, however, subject to a homestead would remain subject to that homestead after the death of the owner, providing his spouse survived, just as land descends to the heirs subject to the curtesy or dower of the surviving spouse. The same exemption continues in the land in favor of the children.

It is further argued that appellants in the instant case contend that Section 1234 prevails over Sections 225 and 226. I do not understand that such is the contention. We would not say that the estate by curtesy or dower prevails over the sections prescribing the law of descent or the law of wills. All laws treating of the same subject matter must be treated as of equal effect and force. When a married person owning land dies, it descends to the heirs subject to the curtesy or dower interest of the surviving spouse. Homestead exemption is of the same nature. The land descends to the heirs as described in said Section 225 subject to the right of homestead exemption vested in the surviving spouse by the law itself. In case a decedent leaves only collateral kindred the homestead exemption would not continue after the death of the owner. Said Section 225. Consequently we do not understand that appellants here are contending that said Section 1234 is superior to said Sections 225 or 226. There is no necessity for doing other than giving every word, every phrase, every sentence in every section a correct and established meaning. To hold, however, that Section 1234 as amended by the act of 1923 does not cover homestead exemptions is not only failing to give the words "all property" the proper meaning but also ignores the effect of the curative clause dealing only with the homesteads being made a part of Section 1234. If the legislature intended that said Section 1234 did not include homesteads it would not have attached to that section a sentence dealing exclusively with homesteads. The sentence referred to is as follows:

"And that all orders heretofore made and entered of any court or judge thereof setting apart to any husband, widow or minor children of the deceased, any homestead under and by virtue of the provisions of section 1234, Oregon Laws, be and the same are hereby ratified, confirmed, validated and legalized in so far as such orders might or could have been lawfully made under the provisions of section 1234, Oregon Laws, the same being chapter 37 of General Laws of Oregon, 1919."

That sentence, it will be observed, is connected with what has gone before with the conjunction "and." No one can question that "all property exempt from execution" includes homestead exemptions.

The original homestead act was enacted in 1893. Said Section 1234 in its original form was a part of the code of 1862. But all of the decisions of this court up to Leet v. Barr held said Section 1234 to include homesteads: Iltz v. Krieger, 104 Or. 59 (202 P. 409, 206 P. 550); Wycoff v. Snapp, above; Inre Frizzell's Estate, above. Only by interpreting "property" in a narrow, restricted and strict sense can there be any conflict between Sections 225, 226 and 1234. There is no more necessity for placing such a construction on the word "property" in said Section 1234 than there is to place that construction on the word "property" in general use. It is a comprehensive term, broad enough to include all kinds of property, personal, real, mixed. It includes freehold estates, leasehold estates and intangibles of all kinds. A property in land which exempts the land from execution in favor of the occupier thereof during life is a very valuable property. A life estate in real estate is real property.

We must not forget that the legislative will is supreme in legislation regarding homesteads. No such estate, interest, privilege or right existed at common law: 29 C.J. 783. There is no necessary conflict between said Section 221 et seq. and Section 1234. There is a conflict between Section 1234 as amended in 1923 and decisions of this court in Leet v.Barr, above, and Slattery v. Newell, above. Under those conditions the will of the legislature should be adopted rather than defeated by construction. When said Section 1234 was enacted it was for the purpose of overcoming the decision of Leet v.Barr to the effect that said Section 1234 must give way to Sections 225 and 226. All three of the sections may stand side by side and all three express the will of the legislature. Leet v.Barr, above, therefore was modified by the amendment of said Section 1234 in 1923.

There is no place for applying the rule that particular must prevail over general. That rule can only apply where there is irreconcilable conflict between the two. There is no such condition presented here.

To deny jurisdiction to the probate courts to set aside exempt homesteads is fraught with serious consequences. There may be many widows and widowers, old people, enjoying the shelter of a home set apart to them as exempt by the probate court. The majority opinion denounces all such orders as void. The heirs may at any time by virtue of the majority opinion eject all such widows and widowers because they are in possession under a void order. Such an order is a nullity. It may be set aside at any time. It would not be any defense to an action of ejectment by the owner of the title.

How, when and where in the history of legislation about homesteads did probate courts lose jurisdiction of the subject matter? See writer's opinion in In re Brizzolari (Or.), 275 P. 17.

The decree should be modified so as to uphold the decree of the County Court for Clackamas County entered June 19, 1925, setting aside said land as exempt from execution; also the judgment should be modified by reducing the amount plaintiffs shall recover from defendants to fifteen dollars per month from the eleventh day of August, 1927, the date of the death of C.C. Jackson. The decree should be affirmed in awarding the fee title to plaintiffs.

McBRIDE, J., concurs in this opinion.