In re Carothers' Estate

• Decision Date: 02 April 1946
• Docket Number: 31691.
• Parties: In re CAROTHERS' ESTATE. v. CAROTHERS et al. CAROTHERS et al.
• Court: Oklahoma Supreme Court

167 P.2d 899

196 Okla. 640, 1946 OK 111

In re CAROTHERS' ESTATE.

CAROTHERS et al. v. CAROTHERS et al.

No. 31691.

Supreme Court of Oklahoma

April 2, 1946

Appeal from District Court, Greer County; W. P. Keen, Judge.

Proceeding in the matter of the estate of Joseph W. Carothers, deceased. From a judgment of the district court affirming a decree of distribution by the county court, Daisy Carothers and others appeal, opposed by George B. Carothers and another executors, and George B. Carothers, individually.

Judgment affirmed.

RILEY J., HURST, V. C.J., and WELCH, J., dissenting.

Syllabus by the Court.

1. 84 O.S.1941 § 44, providing, among other things, that 'no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other', construed and held not to prohibit a husband holding title to the constitutional homestead of the family from disposing of such homestead by will, subject to the right of the surviving spouse to use and occupy the land as the probate homestead under the provisions of 58 O.S.1941 § 311.

2. Where a will by the husband devises to his surviving spouse property less in value than such spouse would have obtained through succession by law, the surviving spouse may elect to take under the law, in which event the county court should set apart to her such share of the property as she may be entitled to under the laws of succession. The will remains effective as to the remainder of the testator's property. The rights of the devisees in such case are subject to the widow's use and occupancy of the homestead as a probate homestead.

Hollis Arnett, of Mangum, for appellants.

H. M. Thacker, of Mangum, for appelees.

OSBORN Justice.

This is an appeal by Daisy Carothers, Maud Morris, Ruby Morris, May Morris and Nona Roberts, hereinafter designated appellants, from a judgment of the District Court of Greer County, affirming a decree of distribution by the County Court of Greer County in the estate of Joseph W. Carothers, deceased, which decree upheld the will of Joseph W. Carothers and vested title to 2/3 of his estate, after the payment of certain bequests, in George B. Carothers. George B. Carothers and Tillman Terry, executors of the last will and testament of Joseph W. Carothers, and George B. Carothers, individually, are appellees.

The facts are undisputed. On August 12, 1939, Joseph W. Carothers made a will devising to his wife, Daisy Carothers, all of the rents, revenues and income from all property owned by him at the time of his death, giving to his daughters May Morris, Maud Morris, Ruby Morris and Nona Roberts, and to his two granddaughters, Ethel Carothers and Pearl Carothers, the sum of $100 each, and devising to his son George B. Carothers the remainder of his estate, subject to the restriction that George B. Carothers should not sell, mortgage or otherwise dispose of any real estate left by the testator for a period of twenty years following the testator's death.

Joseph W. Carothers died on November 25, 1941. At the time of his death he and his wife, Daisy Carothers, resided upon the Northeast Quarter of Section 29, Township 7 North, Range 21 West in Greer County, which was his homestead. Upon his death the homestead was set apart to his widow, Daisy Carothers. The widow and Maud Morris, one of the daughters of Joseph W. Carothers, deceased, filed a contest of the will, but the will was admitted to probate over their protest and thereafter Daisy Carothers elected to take under the law. Final account and petition for distribution was filed by the executors, and appellants filed a petition for distribution under the laws of succession, which latter petition was by the court denied, and the property was distributed 1/3 to the widow and 2/3 under the will to George B. Carothers. This decree was affirmed by the District Court on appeal. The distribution of 2/3 of the homestead to George B. Carothers was by the county court expressly made subject to the rights of Daisy Carothers, as the surviving wife of Joseph W. Carothers, deceased.

The sole question presented is whether the will of Joseph W. Carothers, deceased, is absolutely void as to the above-described lands and of no force and effect by reason of the provisions of 84 O.S.1941 § 44. That section reads as follows: 'Every estate in property may be disposed of by will; provided, however, that a will shall be subservient to any antenuptial marriage contract in writing; but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one helf thereof in value to the surviving spouse; provided further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.'

Appellants urge that under this statute Joseph W. Carothers, deceased, could not lawfully devise his homestead to any person except his widow, Daisy Carothers; that therefore the will was a nullity, and that the county court should have distributed the property under the laws of intestate succession to the legal heirs of Joseph W. Carothers, deceased, without regard to the provisions of the will. They contend, in effect, that by the last proviso in the statute, supra, with the exception thereto annexed, the Legislature intended to and did absolutely prohibit the devise of the homestead by the spouse holding title thereto to any person except to the surviving spouse. We think this contention erroneous, and that the judgment of the district court affirming the judgment of the county court was correct.

The amended section above quoted was originally adopted from the Complied Laws of Dakota of 1887, being section 3308 thereof. As originally adopted it read as follows: 'Every estate and interest in real or personal property, to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will.'

In 1909 it was amended to read as follows: 'Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will; Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband; Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will.' Sec. 8341, R.L.1910.

In 1925 it was again amended and appears in the 1931 Statutes as section 1539. As so amended, the last proviso, which is the part material to the controversy in the instant case, was changed to read as follows: '* * * Provided, further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.'

It was enacted in its present form, as first above quoted, in 1941, and as so enacted was in force and effect at the time of the death of J. W. Carothers. Thus it appears that the last proviso of said section in substance existed in the statute and has been a part thereof since 1909, the words 'except that the homestead may be devised by one spouse to the other' being added in 1925.

This court has in numerous cases, involving varying sets of fact, discussed the nature of the homestead as created by our constitution and statutes. We have held in a number of cases that the homestead, as it exists in this state, is a creature of the constitution and statutes, nothing like it being known at common law. Pettis v. Johnson, 78 Okl. 277, 190 P. 681; In re Musselman's Estate, 167 Okl. 560, 31 P.2d 142; Hembree v. Magnolia Petroleum Co., 176 Okl. 524, 56 P.2d 851; Karbs v. Bouse, 195 Okl. 23, 154 P.2d 968. We have further held that the constitutional and statutory provisions were enacted for the purpose of protecting the entire family. Brooks v. Butler, 184 Okl. 414, 87 P.2d 1092; Pettis v. Johnson, supra. The constitutional provisions are set forth in Article 12, sections 1, 2, and 3, of the constitution, and are designed to protect the family while both husband and wife are living, regardless of which one of them is vested with title to the land occupied as the homestead. Article 12, section 1, defines the property of which the homestead may consist. Section 2 provides: 'The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon; nor shall the owner, if married,sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law; Provided, Nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage.'

16 O.S.1941 § 4 provides that no deed, mortgage or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both busband and wife, where both are living and not divorced or legally...