Calmer v. Calmer
| Decision Date | 30 January 1906 |
| Citation | 106 N.W. 684,15 N.D. 120 |
| Court | North Dakota Supreme Court |
Appeal from District Court, Cass county; Pollock, J.
Action by Cora L. Calmer against Henry E. Calmer, and others. Judgment for plaintiff and defendants appeal.
Lewis T. Hamilton and Newman, Holt & Frame, for appellant.
Homestead must possess all the requirements prescribed by the Code. Cosebolt v. Donaldson, 67 Mo. 308; Helfenstein v Cave, 3 Iowa 290; Zoellner v. Zoellner, 19 N.W 556; Beecher v. Baldy, 7 Mich. 500.
Value is one of the requirements. Beecher v. Baldy, supra.
The value is of the fee, not the owner's equity therein. Yates v. McKibbin et al., 23 N.W. 752; In re Noah, 15 P. 290; Brown v. Starr et al., 21 P 973; Franks v. Lucas, 77 Ky. 395; Arnolds v. Jones, 77 Tenn. 545; Kinkaid v. Burem, 77 Tenn. 553; Herdman v. Cooper, 29 Ill.App. 589; Miles v. Hall, 75 Ky. 105; Morris v. Moulton, 34 N.H. 392; McCanna v. Anderson, 6 N.D. 487.
If the value exceeds the limit fixed by statute there is no homestead. Zoellner v. Zoellner, supra; Beecher v. Baldy, supra; Estate of Delaney, 37 Cal. 176; Farley v. Whitehead, 63 Ala. 295; Pazello v. Campbell, 46 Ala. 40; Miller v. Andrews, 45 Ala. 454; Miller v. Marx, 55 Ala. 322; Garner v. Bond, 61 Ala. 84; Wardell v. Wardell, 99 N.W. 674.
Homestead cannot be sold and the value of the exemption paid to the widow, and balance applied to debts. Noah's estate, 15 P. 290; Helfenstein v. Cave, 3 Iowa 287; Zoellner v. Zoellner, supra; Casebolt v. Donaldson, 67 Mo. 308; Wright v. Westheimer, 28 P. 430; In re Isaacs, 30 Cal. 106; Schuyler v. Broughton, 76 Cal. 524.
T. H. McEnroe, for respondent.
The exemption is not determined from the value of the fee simple title, but of the claimant's interest in the premises. Sanford v. Anderson et al., 92 N.W. 152; Rawles v. Reichenbach et al., 90 N.W. 943; Joslin et al. v. Williams, 93 N.W. 701.
Homestead may be claimed in land held under equitable as well as legal title. 15 Am. & Eng. Enc. Law (2d Ed.) 607, 608.
Value and extent are not considered in determining whet is the homestead. 15 Am. & Eng. Enc. Law (2d Ed.) 602, 603; Gregg v. Bostwick, 91 Am. Dec. 637, 644.
County court may set aside a homestead, whether its value exceeds $ 5,000 or not. McElroy v. Bixby, 84 Am. Dec. 684; Wardell v. Wardell, supra; Burns et al. v. Keas et al., 21 Iowa 257.
This is an appeal from a judgment of the district court affirming a decree of the county court setting apart to the respondent her homestead and personal property exemptions out of the estate of Charles J. Calmer, deceased. The appellants are the two sons of said deceased. The respondent is the widow.
The facts are undisputed. Charles J. Calmer died intestate April 9, 1904, leaving surviving him a widow and three children; two sons and a daughter. The two sons are now over 21 years of age, the younger having attained his majority in December, 1905, after this appeal was heard. The daughter is about three years old. The deceased died seised in fee of the real property in question. He had owned it, and occupied it as a family residence for several years, and he and his family were residing thereon at the time of his death. The property consisted of a lot in the city of Fargo less than two acres in area, upon which there was a two-story brick building; the upper of story of which was used as the family dwelling, and the lower as a store. The building was mainly used as a family residence; its use in part as a place of business was only incidental. The property is worth $ 7,000, is mortgaged for about $ 2,800, and cannot be divided without material injury. The appellants assert that under these circumstances the widow has no homestead estate in the premises. The respondent contends that the entire premises are unconditionally exempt to her as a homestead, because, for the purpose of determining the value of the property claimed as a homestead the amount of existing incumbrances thereon should be deducted from the value of the land and buildings thereon.
We shall take up appellant's proposition first, as that presents the question whether the respondent has a homestead right in the premises in question. The state Constitution directs that (section 208): Previous to 1891, the homestead was limited as to area but not as to value. Comp. Laws 1887, section 2449, et seq. The present law with relation to the exemption and descent of the homestead is found in chapter 39 of the Civil Code. Sections 3605-3638, Revised Codes, 1899. Section 3605, Rev. Codes 1899, provides: "The homestead of every head of a family residing in this state, not exceeding in value five thousand dollars, and if within a town plat, not exceeding two acres in extent, and if not within a town plat, not exceeding in the aggregate more than one hundred and sixty acres, and consisting of a dwelling house in which the homestead claimant resides, and all its appurtenances and the land on which the same is situated shall be exempt from judgment lien and from execution or forced sale except as provided in this chapter." Subsequent sections (3610-3618) prescribe the method of determining the value of the homestead and the procedure by an execution creditor who has levied thereon and desires to reach the nonexempt part of the property, in case "the value of the homestead exceeds the amount of the homestead exemption." Section 3611, Rev. Codes 1899. These sections, among other things, in substance provide that if the value of the property claimed as a homestead exceeds $ 5,000, and cannot be divided without material injury, the whole shall be offered for sale, and if it can be sold for more than $ 5,000, then that said sum shall be paid to the homestead claimant, and the remainder of the proceeds of the sale may be applied on the execution. Sections 3626-3631 relate to the disposition of the homestead after the owner's death. Upon the death of a person holding the title to real property constituting a homestead "a homestead estate in such property" shall survive, descend, and be distributed to the surviving husband or wife for life; and if he or she dies before the youngest minor child attains its majority the same estate continues for the benefit of the children during its or their minority. If there is no surviving husband or wife, the homestead estate vests at once in the minor child or children until the youngest child attains its majority. Section 3627 defines the term "homestead estate" to mean "the right to the possession, use, control, income and rents of the real property held or occupied by the decedent as a homestead at death." The county court is required to ascertain and award the homestead estate to the persons entitled thereto after the owner's death. Section 3628 provides: "If a homestead in such real property had been ascertained and set off to such decedent before death as provided in this chapter the homestead estate provided for in section 3626 shall be commensurate therewith and must not be again ascertained; but if such homestead had not been so ascertained and set off, the county court must ascertain in the manner provided in the Probate Code and set off and decree the homestead estate to the surviving husband or wife, or minor child or children, as the case may be; provided, however, that the real property which is subjected to the homestead estate by the county court and in which such estate is ascertained and set off by such court must not exceed in value or area the value or area prescribed in section 3605." Section 3629 prescribes the form and contents of the decree of the county court setting off the homestead estate. Section 3630 provides, in substance, that the "real property subjected to the homestead estate" shall, "subject to the satisfaction of such estate," descend to the heirs or devisees exempt from the decedent's debts, except those enumerated in section 3607. If there are no heirs in the direct descending line then the property is subject to the claims of general creditors after the satisfaction of the homestead estate. The procedure for ascertaining and setting off the homestead estate in county court is further described in article 3, c. 6, of the Probate Code. Rev. Codes 1899, section 6389, et seq.
In cases where the homestead property can be divided without material injury, and exceeds the amount exempted in area or value, the exempt part is set off by metes and bounds in substantially the same manner as that prescribed in case of an execution levy in the lifetime of the decedent. Section 6390. If, however, the property cannot be divided without material injury, the appraisers are required to report that fact to the court, and thereupon the court proceeds as provided in section 6392, which will be hereinafter referred to. It is apparent from the foregoing statutory provisions that a "homestead estate" can attach only to such property as constituted the decedent's homestead at the time of his death. If the deceased had no homestead, there is nothing in which to decree a homestead estate for his widow. Appellant asserts that Charles J. Calmer, in his lifetime, had no homestead, because the real property occupied as a home by him and...
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