Benedict v. Lee

• Decision Date: 29 April 1953
• Citation: 256 P.2d 507,198 Or. 378
• Parties: BENEDICT v. LEE.
• Court: Oregon Supreme Court

Page 507

256 P.2d 507

198 Or. 378

BENEDICT v. LEE.

Supreme Court of Oregon.

Argued and Submitted March 18, 1953.

Decided April 29, 1953.

Louis E. Starr, of Portland, argued the cause and filed a brief for appellant.

George P. Winslow, of Tillamook, argued the cause and filed a brief for respondent.

Before LATOURETTE, C. J., and LUSK, TOOZE and PERRY, JJ.

TOOZE, Justice.

Clarence G. Benedict, as the widower of Cecilia F. Benedict, deceased, filed in the probate department of the county court for Tillamook county, Oregon, his petition to have set apart to him as his homestead certain real property located in Tillamook county, which was owned by his wife at the time of her death. The petition was resisted by George W. Lee, as administrator de bonis non, with will annexed, of the estate of Cecilia F. Benedict, deceased. Pursuant to the provisions of § 13-502, O.C.L.A., the cause was transferred for hearing to the circuit court for Tillamook county, by order of the county court dated May 31, 1951. The trial court entered an order denying the petition, and petitioner appeals.

Cecilia F. Benedict died testate in Tillamook county on December 12, 1950, at the age of 69 years. She left surviving her as her sole heirs at law, devisees, and legatees, the following persons: Clarence G. Benedict, surviving husband, residing at 724 S. E. Grant street, Portland, Oregon; Daniel J. Blackmore, a son, residing at Mohler, Oregon; Dorothy E. Lee, a daughter, residing at Nehalem, Oregon; and Lawrence L. Blackmore, a son, residing at Mohler, Oregon.

At the time of her death Mrs. Benedict was the owner of various assets, including the real property involved in this proceeding. In her last will and testament, which was executed on May 26, 1933, and duly admitted to probate on January 2, 1951, the decedent bequeathed to her widower the sum of $300 only. All of her real property was devised and bequeathed to her children, Daniel J. Blackmore, Lawrence L. Blackmore, and Dorothy E. Lee, share and share alike. On January 26, 1951, Clarence G. Benedict, widower, filed in the probate proceeding his formal renunciation of all provisions of the last will and testament in his favor, and elected to take curtesy in the lands of decedent, pursuant to the provisions of § 17-401, O.C.L.A.

On May 17, 1951, Clarence G. Benedict, as surviving widower, duly filed his petition in the probate court for an order to set apart to him a probate homestead in the real property of which Cecilia F. Benedict died seized in fee simple. In his petition he described the property by metes and bounds and alleged that it had been appraised as of the value of $13,000. He also alleged that no homestead had been selected, designated, and recorded by either the decedent or himself during the lifetime of decedent. An answer was filed by Dorothy E. Lee, then executrix of the estate, denying the material allegations of the complaint and affirmatively alleging that the petition did not state facts sufficient to authorize the court to grant the prayer of the petition, and that the petitioner had no right, title, or interest in and to the real property described in the petition, or any part thereof.

The real property involved comprises a comparatively small dairy ranch located near Mohler, in Tillamook county. It was owned by decedent at the time of her marriage to Clarence G. Benedict at Vancouver, Washington, on April 18, 1927. At the time of this marriage, decedent and her three children, the issue of a prior marriage, were living at Vancouver, the dairy ranch being rented. Petitioner had two sons by a prior marriage.

Shortly after the marriage, petitioner and his wife, with their respective children, moved upon the ranch, continuing to reside thereon and operate it until 1930, when it was leased to one Easom for a term of five years. Thereupon, the family moved to Tigard, in Washington county, Oregon. Petitioner is a carpenter by trade and carried on his occupation in Portland, Astoria, and Tacoma. He knew little about dairying, and his operation of the ranch for the period of two years did not prove successful.

In 1934, Easom surrendered the premises, and decedent and her two boys returned to the ranch. Petitioner remained in Portland, visiting the home place on week-ends. With the help of her sons, particularly that of Lawrence, decedent continued to operate the dairy ranch until 1941. Lawrence was married in 1941 and established his home about a mile from his mother's property. For a period of approximately two years, he worked for others, his mother employing outside help on the ranch. During the latter part of 1941, and until November, 1942, petitioner lived upon the premises while constructing a barn thereon.

Decedent was dissatisfied with conditions and threatened to sell the property. She not only wished to live with her husband in Portland, but also desired to be near a Catholic church, of which she was a devout member. The nearest church to the Mohler property was that located at Rockaway, approximately ten miles distant, and her son Lawrence rebelled at taking her to church as often as she desired.

In 1943, according to the testimony of Lawrence, an arrangement was entered into between himself and his mother, whereby he took charge of the operations of the ranch. Lawrence and his wife moved upon the premises and remained there continuously until the time of trial of this proceeding. Decedent returned to Portland and thereafter resided with petitioner in a rented apartment at the Grant street address above given. She returned to the farm periodically to the time of her death, and had been there for a period of approximately a month immediately prior to her death. Upon such periodical visits, decedent also visited with her daughter at Nehalem.

While Lawrence was operating the ranch and until 1949, all receipts from the operations of the premises were deposited in the bank to the credit of decedent, and she paid all the bills. With the assistance of Lawrence, she prepared and filed annual income tax returns. In all but one or two of these returns, she set forth as a deduction the sum of $1,000 as payment to Lawrence for his services in conducting the affairs of the ranch. In 1949, decedent suffered a heart attack and thereafter was unable to write. She executed a power of attorney authorizing Lawrence to act in her place and stated.

Upon the trial, the administrator directed most of his evidence to the proposition that petitioner's actual place of abode was in Portland, not on the farm, and to the contention that when decedent left the ranch in 1943, she did not intend to return again and claim it as her home, and that her place of abode at the time of her death was with her husband in Portland.

There is a decided conflict in the testimony respecting these matters, but we do not deem it necessary to determine wherein lies the truth. The trial court based its final order upon a finding that at the time of decedent's death, the dairy farm was not the bona fide home and abode of decedent and petitioner, and, for the purposes of this opinion, we are willing to accept that finding at its face value.

Section 6-1301, O.C.L.A., as amended by ch. 9, Oregon Laws 1949, provides:

'A homestead shall be exempt from sale on execution from the lien of every judgment and from liability in any form for the debts of the owner to the amount in value of five thousand dollars ($5,000), except as otherwise provided by law. The homestead must be the actual abode of and occupied by the owner, his or her spouse, parent or child, and such exemption shall not be impaired by temporary removal or absence with the intention to reoccupy the same as a homestead, nor by the sale thereof, but shall extend to the proceeds derived from such sale to an amount not exceeding five thousand dollars ($5,000), while held, with the intention to procure another homestead therewith for a period not exceeding one year.' (Italics ours.)

There is no dispute in the evidence about the property in question being 'the actual abode of and occupied by' Lawrence Blackmore, the son of decedent, at the time of her death and for several years continuously immediately prior thereto. The requirements of the homestead statute as to actual abode and occupancy are met not only be permanent residence thereon by the owner, his or her spouse, or parent, but also by the same being the actual abode of and occupied by a child of the owner. It follows, therefore, that under the facts of this case, the real property in question was subject to being claimed or set aside as a homestead.

Section 19-602, O.C.L.A., provides in part as follows:

'Upon the filing of the inventory [in the estate] 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 * * *.' (Italics ours.)

Section 6-1306, O.C.L.A., provides:

'When any homestead shall have been disposed of by the last will and 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 * * *; provided, however, that such exemption shall not extend to any devisee other than a child, grandchild, widow or widower * * *; 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 19-602.' (Italics ours.)

In speaking for the court in Jenning v. Jenning, Or., 253 P.2d 276, 278, Mr. Justice Perry said:

'Since the right of homestead is a matter of...