Fore v. Fore's Estate

• Decision Date: 02 December 1891
• Citation: 50 N.W. 712,2 N.D. 260
• Parties: Fore v. Fore's Estate.
• Court: North Dakota Supreme Court

2 N.D. 260

50 N.W. 712

Fore

v.Fore's Estate.

Supreme Court of North Dakota.

Dec. 2, 1891.

Syllabus by the Court.

1. Under section 5779, Comp. Laws, it is the duty of the probate court to set apart, for the use of the family of the decedent, personal property, in addition to the specific articles mentioned in section 5778, Comp. Laws, not to exceed in value the sum of $1,500, and the property so set apart does not belong to the assets of the estate to be distributed to the heirs of the decedent.

2. When the decedent left a widow, but no minor child, the property thus set apart for the use of the family becomes the absolute property of such surviving widow, under section 5784, Comp. Laws.

3. When a party dies seised in fee of land occupied and used by himself and family as a homestead at the time of his death, his surviving widow is entitled, as against his heirs or devisees, to occupy and possess the whole of such homestead as long as she preserves its homestead character by maintaining her home thereon, and the fact of her second marriage does not impair this right.

Appeal from district court, Traill county; William B. McConnell, Judge.

Proceeding by Nils N. Fore, administrator of Nils L. Fore, deceased, against the estate of Lars N. Fore, deceased. Judgment for defendant. Plaintiff appeals. Affirmed.A. B. Levisee, for appellant. F. W. Ames, for respondent.

Bartholomew, J.

On appeal from an order entered by the probate court of Traill county to the district court this case was submitted upon an agreed statement of facts, which we reproduce so far as necessary for a proper understanding of the points decided. Lars N. Fore died intestate in Traill county, in January, 1887, leaving surviving him a wife, but no issue, and his father, Nils L. Fore, as his only heirs at law. In due course an administrator of the estate was appointed and qualified, and proceeded to the discharge of his duties. At the time of his death Lars N. Fore was the owner of 240 acres of land, upon 160 acres of which, all lying in one body, he, with his wife, resided, using the same as a homestead. The inventory of his personal property amounted to over $1,800. After the death of Lars N. Fore his widow continued to reside on the homestead, and in about nine months she intermarried with one Frigstadt, and still continued to reside and make her home, with her second husband, on such homestead. Under the orders of the probate court the administrator turned over to the widow property known as “absolute exemptions,” to the value of $153, and, in addition thereto, other personal property, for her use, of the value of $1,496. In the final settlement the administrator was credited with said amounts, and the probate court refused to include the homestead in the property distributed to the heirs of Lars N. Fore in the final decree settling the estate. While the case was pending in the district court, Nils L. Fore died, and his administrator, Nils N. Fore, was substituted as a party to the action. The district court sustained the action of the probate court, and the administrator of Nils L. Fore appeals the case to this court.

The appellant claims that the court erred in allowing the widow personal property to the amount of $1,496 in addition to the absolute exemptions, and in postponing the distribution of the land embraced in the homestead of Lars N. Fore to his heirs, until after the surviving widow ceased to occupy the same as a home. Section 5778, Comp. Laws, reads as follows: “Upon the death of either husband or wife, the survivor may continue to possess and occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of both husband and wife the children may continue to possess and occupy the whole homestead until the youngest child becomes of age; and, in addition thereto, the following personal property must be immediately delivered by the executor or administrator to such surviving wife or husband, and child or children, and is not to be deemed assets, namely: (1) All family pictures; (2) a pew or other sitting in any house of worship; (3) a lot or lots in any burial ground; (4) the family Bible, and all school-books used by the family, and all other books used as a part of the family library, not exceeding in value one hundred dollars; (5) all wearing apparel and clothing of the decedent and his family; (6) the provisions of the family, necessary for one year's supply, either provided or growing, or both, and fuel necessary for one year; (7) all household and kitchen furniture, including stoves, beds, bedsteads,and bedding, not exceeding one hundred and fifty dollars in value.” Section 5779 contains the following: “In addition to the property mentioned in the preceding section, there shall also be allowed and set apart to the surviving wife or husband, or the minor child or children of the decedent, all such personal property or money as is exempt by law from levy and sale on execution or other final process from any court, to be, with the homestead, possessed and used by them.” We first notice the objections to the allowance of personal property amounting to $1,496 to the widow for her use. Section 5127, Comp. Laws, absolutely exempts from levy and sale on execution all the specific property mentioned in section 5778, above quoted, except the seventh subdivision. It also specifically exempts the homestead. The following section (5128) reads as follows: “In addition to the property mentioned in the preceding section, the debtor may, by himself or his agent, select from all other of his personal property, not absolutely exempt, goods, chattels, merchandise, money, or other personal property, not to exceed in the aggregate fifteen hundred dollars in value, which is also exempt, and must be chosen and appraised as hereinafter provided.” The argument is that the property that may be set apart for the use of the widow under section 5779 cannot be the same property mentioned in section 5128, because the property to which the widow is entitled is “all such personal property or money as is exempt by law from levy and sale on execution,” while the property mentioned in section 5128, it is claimed, is not exempt by law, but by the act of the debtor in selecting the same. But this construction, as is readily apparent, destroys the statute. The legislature had already, by section 5778, set off to the widow all the specific property that the law absolutely exempts, and more; and hence, if appellant's construction be correct, there was nothing whatever for section 5779 to act upon, and its presence in the statute is entirely superfluous. The wording of the statute does not require any such narrow construction. Section 5128 exempts “goods, chattels, merchandise, money, or other personal property, not to exceed in the aggregate fifteen hundred dollars in value, which is also exempt, and must be chosen and appraised as hereinafter provided.” The law creates a general present exemption to the amount of $1,500. The debtor, by his selection, converts this general exemption into a specific exemption. The law requires him to make the exemption specific in that manner or waive it. The power that he has is not to create an exemption, but to waive one that the law has already created for his benefit. We do not understand the case of Mann v. Welton, 21 Neb. 541, 32 N. W. Rep. 599, cited by appellant, to conflict with these views, but rather to sustain them. In that case there was exempt “the sum of five hundred dollars in personal property.” The debtor was required to make a sworn inventory, and that was followed by an appraisement and selection. The debtor took no steps to make the exemption attach to any specific property, but brought replevin against the officer. The court said that when the selection was made, “then, and not until then, does the character or quality of exemption attach to the specific property to the extent that replevin may be maintained for its possession.” Had the husband lived, he could, as against any legal process, have held all the property that was turned over to the widow for the support and maintenance of his family. We cannot think that the legislature intended to give the family less protection when the husband and father was dead than when he was living. See Bank v. Freeman, 1 N. D. ---, 46 N. W. Rep. 36.

It is also contended that the property so set apart to the widow is only to be “possessed and used” by her temporarily, and must be accounted for in the final distribution of the estate. Whatever may be the holding in other states, our statutes are clear and explicit to the contrary. Section 5784, following in the same chapter with the sections specifying what shall be set apart for the use of the family, says: “When personal property is set apart for the use of the family in accordance with the provisions of this chapter, if the decedent left a widow or surviving husband and no minor child, such property is the property of the widow or surviving husband.” We quote so much of the section as covers this case, and there can be no doubt of its meaning. The ruling of the court upon the disposition of the personal property was clearly right. The respondent contends that, upon the death of the husband, his widow surviving him, and he being seised in fee of the land then occupied by himself and his family as a homestead, and dying intestate, the fee to the homestead goes to his heirs at law, under the statute of descent; but that the homestead right, including the right to possession, whether the husband died testate or intestate, survives, and passes to his widow, to be enjoyed by her so long as she continues to occupy the premises as a homestead. Appellant takes issue upon the last proposition, and claims that the homestead right of the widow, including the possession and usufruct, ceases and determines at the final settlement and distribution of the estate. The decision of the...