In re Banfield's Estate

• Decision Date: 28 April 1931
• Citation: 298 P. 905,137 Or. 167
• Parties: IN RE BANFIELD'S ESTATE. v. SCHULDERMAN ET AL. BANFIELD
• Court: Oregon Supreme Court

298 P. 905

137 Or. 167

IN RE BANFIELD'S ESTATE.

BANFIELD v. SCHULDERMAN ET AL.

Supreme Court of Oregon

April 28, 1931

Department 2.

Appeal from Circuit Court, Multnomah County; George Tazwell, Judge.

On motion for modification.

Motion granted.

For former opinion, see 296 P. 1066.

This is a motion for modification of our opinion in the case of In re Banfield's Estate, 296 P. 1066, 1068 filed March 17, 1931, wherein we awarded to petitioner widower of Marie Banfield, deceased, as his homestead, lot 9 block 5, in Howe's addition to Portland, subject "to the expenses of the last sickness and the funeral of decedent, and the costs and charges of probate." The order entered therein, the petitioner asserts, "should be supplemented by adding thereto the words, 'if there is not sufficient other property in the estate to meet such expenses.' "

Albert L. Gordon, of Portland, for the motion.

BROWN, J.

The Oregon homestead law has been the subject of much litigation and considerable legislation.

In 1893, the Legislative Assembly of this state enacted a law "To Exempt Homesteads from Attachment and Judicial Sale." See General Laws of Oregon 1893, p. 93. Section 1 of that act provided for the exemption from judicial sale of the family homestead, and section 2, that such homestead must be the actual abode of the family, or some member thereof. Section 3 fixed a limitation of $1,500 in value. This law appears as sections 221-226, inc., Bellinger and Cotton's Code, and as sections 221-226, inc., L. Or. L. By chapter 221, p. 383, General Laws of Oregon 1905, section 1 of the act was re-enacted. The act was revised by chapter 112, p. 160, General Laws of Oregon 1919, which is entitled, "An Act to provide a homestead exemption law and to repeal sections 221, 222, 223, 224, 225 and 226 of Lord's Oregon laws and all acts and parts of acts in conflict herewith." By chapter 263, p. 377, General Laws of Oregon 1923, the Legislature amended and re- enacted section 1234, Oregon Laws relating to setting apart for the husband widow, or minor children of the deceased all property exempt from execution, and by the re-enactment of that section ratified and confirmed orders theretofore made by any court or judge thereof. Sections 225 and 226, Or. L., and section 1234, Oregon Laws, as amended by chapter 263, p. 377, General Laws of Oregon 1923, relating to homesteads, were amended by chapter 345, p. 453, General Laws of Oregon 1927. In section 2 of this chapter, the same being section 226, Or. L., there appears for the first time the proviso objected to in the instant case, i. e., that "such homestead shall be subject to and charged with the expenses of his last sickness and of his funeral and the costs and charges of probate." Under our homestead exemption statute, the exemption is limited to a specified area, and to the specified value of $3,000. If, as we did in our original opinion in this case, we are to construe this language of the statute literally, the homestead of petitioner is subject to the expenses of decedent's last sickness in the sum of $28.50, funeral expenses in the sum of $575.45, and costs and charges of probate in about $2,000--and this notwithstanding the estate is appraised at $37,881.34.

In our search of the authorities, we have found no case on all fours with the facts in the case at bar. But we have found much authority sustaining the proposition that this statute is a remedial statute and, to accomplish its beneficent purpose, should be broadly construed.

In Thompson on Homesteads and Exemptions, at section 1, the author has expressed his views on the homestead exemption law in the following language:

"The wise and benevolent policy which dictated the enactment of these laws has been the theme of considerable forensic and judicial eloquence. The late Senator Benton, advocating in the United States Senate the adoption of a general homestead policy, said: 'Tenantry is unfavorable to freedom. It lays the foundation for separate orders in society, annihilates the love of country, and weakens the spirit of independence. The tenant has, in fact, no country, no hearth, no domestic alter, no household god. The freeholder, on the contrary, is the natural supporter of a free government; and it should be the policy of republics to multiply their freeholders, as it is the policy of monarchies to multiply their tenants.' 'There is,' said Tarbell, J., * * * 'unquestionably no greater incentive to virtue, industry, and love of country than a permanent "home," around which gather the affections of the family, and to which the members fondly turn, however widely they may be dispersed.' * * *

"And we find scattered through the cases which involve the construction of these laws, such expressions as these:

" '* * * That the homestead exemption was founded upon principles of the soundest policy cannot be questioned. Its design was, not only to protect citizens and their families from the miseries and dangers of destitution, but also to cherish and support in the bosoms of individuals those feelings of sublime independence which are essential to the maintenance of free institutions. These are noble objects.' "

One of the fundamental rules of statutory construction, codified as Or. Code 1930, § 9-214, reads: "In the construction of a statute * * * the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all."

It is likewise fundamental that various parts of a statute should be read so that all may, if possible, have their due...