Mercer v. Mercer
| Decision Date | 19 September 1961 |
| Docket Number | No. 39128,39128 |
| Citation | 1961 OK 210,365 P.2d 554 |
| Parties | Thomas F. MERCER and Miriam Mercer Bradley, Plaintiffs in Error, v. Helen L. MERCER, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. The exemption laws and the laws pertaining to the homestead rights of a surviving spouse constitute two distinct policies of the state, and should not be confused in determining the rights of a party under either policy. The exemption laws are intended as a protection to the head of a family, against creditors only, while the homestead right, given to a surviving spouse, to occupy and live upon the homestead, is intended to protect such survivor against all persons, except holders of expressly enforceable liens, during her lifetime, or until voluntarily waived by such survivor.
2. Survivorship is the distinguishing characteristic of a joint tenancy and on the death of one of the joint tenants, precludes the devolution upon his heirs of any interest in the estate held in joint tenancy. As to property held in joint tenancy the survivor takes under the original grant and there is nothing to inherit from the one dying first.
3. Selection of homestead determined by spoken declarations, ownership, possession and occupancy will impress land with the character of a homestead.
4. Whether a homestead has been abandoned is a question of fact, ascertainable from the circumstances surrounding the particular transaction, and such abandonment must be established by clear and convincing evidence.
5. Right of surviving spouse to occupy and live on the whole homestead is superior to rights of codevisees of interest in property, whose rights are postponed during her life, or until her voluntary abandonment.
Appeal from the District Court of Payne County; R. L. Hert, Judge.
Appeal from judgment granting homestead rights to surviving spouse. Affirmed.
Leon J. York, Sr., Leon J. York, Jr., Stillwater, for plaintiffs in error.
Hoel & Horton, Stillwater, for defendant in error.
This is an appeal from a District Court judgment granting homestead rights in a residential property and widow's allowance to Helen L. Mercer (herein referred to as Helen), as surviving spouse of H. Ford Mercer (herein referred to as Ford), deceased.
The record reflects that in 1945 Ford Mercer and his then wife, Frances S. Mercer, took title to Lots three and four, Block four, in Park Addition to the City of Stillwater, Oklahoma, 'as joint tenants, and not tenants in common, with right of survivorship.' They occupied the property as their homestead together with their minor children, Thomas F. Mercer and Miriam Mercer, now Bradley (herein referred to by name or as plaintiffs in error.) On February 25, 1957, Frances died, leaving as her survivors, Ford (surviving husband) and her adult children, Thomas and Miriam. Ford and Thomas continued to reside in the property.
The record further reflects that Ford was employed by the Wildlife Division of Oklahoma State University. In January, 1958, he applied for a position in the Point-4 Program for a period of two years in Ethiopia. In such position he would be on leave of absence but continue as an employee of the University with funds furnished by the United States and Ethiopian governments. Ford and Helen were then engaged to be married. Anticipating approval of this application Ford and Helen secured passports, took physical examinations and immunization shots and otherwise prepared for the foreign assignment. The marriage date was set for May 15, 1958. Thomas (unmarried) returned from military service April 24, 1958, and resumed residence in the property with his father, Ford.
On May 15, 1958, Ford and Helen were married and, after a two day trip, lived in the property as husband and wife. Four or five days after the marriage Ford was informed of final approval of his application and on May 26, 1958, he and Helen left Stillwater, Oklahoma, and went to Ethiopia. Thomas continued to reside in the property as a tenant on a rental basis. On April 5, 1959, Ford died in Ethiopia and Helen returned to the United States. She resumed residence in the property.
The will of Ford, leaving all his property in equal shares to his surviving wife, Helen, and children, Thomas and Miriam, was admitted to probate in the county court. The county court ordered the property set aside to Helen as her probate homestead and awarded her exclusive possession and granted her a widow's allowance. Thomas and Miriam appealed to the district court.
On trial de novo the district court affirmed the judgment of the county court. Thomas and Miriam have perfected this appeal from that judgment.
Plaintiffs in error urge that Helen, being the second wife of Ford, could not as a matter of law obtain homestead rights to the property that had been previously impressed with homestead rights by Ford and his first wife and family. It is argued under this proposition that another homestead cannot be superimposed upon a homestead already existing in favor of the members of the family.
Sections 1 and 2, Art. 12 of the Oklahoma Constitution, and 31 O.S.1951 § 1 (Amended Laws 1957), declare the extent and value of the homestead and its exemption, with certain exceptions, from forced sale. These exemption rights are intended as a protection against creditors only. Title 58 O.S.Supp.1953 § 311 gives to the surviving spouse the right to continue to possess and occupy the whole homestead. This is known as the probate homestead. The purpose thereof was to protect the survivor in this right against all persons. These are two distinct policies of the state, and should not be confused in determining the rights of a party under either policy. See Bowers v. Gardner, 122 Okl. 26, 250 P. 490.
The present case does not involve the rights of creditors or exemption from forced sale. Consequently the authorities cited by plaintiffs in error relative to the exemption of a homestead are not in...
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...of interest in [the] property, whose rights are postponed during her life, or until her voluntary abandonment." Mercer v. Mercer, 1961 OK 210, 365 P.2d 554, 554 (Fifth Syllabus by the Court)(emphasis added). We have held "[t]he homestead is reserved to the family if the title is in either h......
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