In re Estate of Nielsen

• Decision Date: 17 June 1938
• Docket Number: 30261
• Citation: 280 N.W. 246,135 Neb. 110
• Parties: IN RE ESTATE OF KJELD N. NIELSEN. v. RALPH W. NIELSEN, EXECUTOR, APPELLEE DAGMAR EILERSEN NIELSEN, APPELLANT,
• Court: Nebraska Supreme Court

280 N.W. 246

135 Neb. 110

IN RE ESTATE OF KJELD N. NIELSEN.

DAGMAR EILERSEN NIELSEN, APPELLANT, v. RALPH W. NIELSEN, EXECUTOR, APPELLEE

No. 30261

Supreme Court of Nebraska

June 17, 1938

APPEAL from the district court for Douglas county: JOHN A. RINE JUDGE. Affirmed.

AFFIRMED.

Syllabus by the Court.

1. The actual use of a dwelling as a family home is a sufficient selection under the provisions of the homestead law.

2. Where the homestead is selected from the property of the wife, it must be with her consent; but such consent may, until the contrary is shown, be presumed from the use and occupancy of the property as a family home.

3. " To constitute a valid gift inter vivos there must be an intention to give, coupled with a completed, irrevocable gift, property delivered and title passed beyond the control and dominion of the donor." Johnson v. Omaha Loan & Bldg. Ass'n, 128 Neb. 37, 257 N.W. 370.

4. Title to automobile can be transferred between living persons only by compliance with sections 60-310 and 60-325, Comp.St.1929, relative to such transfer.

5. Testimony of widow with reference to conversations with the deceased in regard to an alleged gift of an automobile is not rendered competent by the introduction by executor of the note given by deceased in payment therefor and her identification of the signature of deceased on same.

6. Taxing of costs is within the sound discretion of the trial court, and is not reviewable unless an abuse of discretion is shown.

Appeal from District Court, Douglas County; Rine, Judge.

Proceeding in the matter of the estate of Kjeld N. Nielsen, deceased, wherein Dagmar Eilersen Nielsen filed a petition praying for the setting aside to her of the wearing apparel, ornaments and household furniture, $200 in lieu of other personal property, $500 exemption in lieu of homestead, and for the allowance of her claim for the proceeds of the sale of an automobile which she alleged was her separate property. The petition was opposed by Ralph W. Nielsen, as executor of the estate. From the decree, Dagmar Eilersen Nielsen appeals.

Affirmed.

Title to automobile can be transferred between living persons only by compliance with statute relating to such transfer. Comp.St.1929, §§ 60-310, 60-325.

Howard Saxton, for appellant.

John M. Berger, contra.

Heard before GOSS, C. J., ROSE, EBERLY, DAY, PAINE and MESSMORE, JJ., and RYAN, District Judge.

OPINION

RYAN, District Judge.

This controversy arose out of the probate of the estate of Kjeld N. Nielsen, deceased. The appellant filed her petition praying for the setting aside to her of the wearing apparel, ornaments and household furniture, $ 200 in lieu of other personal property, $ 500 exemption in lieu of homestead, and she further claimed the sum of $ 400, being the proceeds of the sale of a Plymouth automobile which she alleged was her separate property. Upon appeal to the district court from an order allowing these claims, the district court allowed the first two items claimed, but disallowed the claim for $ 500 exemption in lieu of homestead, and found that the automobile was a part of the assets of the estate and disallowed her claim for the proceeds of the sale thereof, and taxed the costs of the appeal against her. From this decree she appeals to this court.

Kjeld N. Nielsen, at the time of his death and for some years prior thereto, was a resident of Omaha, Douglas county, Nebraska. He died testate on September 28, 1935. His widow, the appellant herein, Dagmar Eilersen Nielsen, renounced the will and filed her election to take under the laws of descent of the state. Appellant and her husband were living at 4255 Wirt street in the city of Omaha at the time of his death. This property was purchased under a joint contract on October 8, 1934, and was conveyed to appellant on October 19, 1934. The purchase price was $ 3,200, of which amount the appellant contributed $ 1,500 out of her separate estate, and the balance was paid by the assumption of the unpaid amount due the Omaha Loan & Building Association on a first mortgage. The monthly payments on this loan were $ 32.95 and were paid by Kjeld N. Nielsen regularly until his death.

The appeal presents two principal questions: First, is a widow who held title to the family home which was the only real estate owned by either of the parties entitled to an allowance of $ 500 in lieu of homestead under sections 30-103 and 20-1553, Comp. St. 1929? and, secondly, does the evidence substantiate her claim of ownership of the family automobile?

For convenience in this opinion the claimant, Dagmar Eilersen Nielsen, will be designated as the plaintiff and the executor, Ralph W. Nielsen, as the defendant.

Plaintiff cites many cases, including Meisner v. Hill, 92 Neb. 435, 138 N.W. 583, and Teske v. Dittberner, 70 Neb. 544, 98 N.W. 57, in support of the general proposition that the courts of this state have liberally construed homestead exemptions, particularly where the rights of creditors are not affected; and there is no claim that such rights would be affected in this case as the total claims allowed against the estate were $ 127.17 and the estate has cash assets of $ 4,756.13 as shown by the inventory. The precise question presented for determination in this case, however, is whether the property at 4255 Wirt street, being lot 11, block 2, Maplewood Addition to the city of Omaha, constituted the homestead of plaintiff and her husband. If it did, then the allowance of $ 500 was properly denied her by the trial court. It is true that the title to that property was in the plaintiff and that she contributed the sum of $ 1,500 toward the purchase price out of her separate estate. It is likewise true that this court held in Klamp v. Klamp, 58 Neb. 748, 79 N.W. 735, that a husband could not acquire a homestead in the separate property of the wife except with her consent. The question in that case was whether or not the husband had a right to compel the wife, from whom he had previously been divorced, to account to him for the proceeds of the homestead which was the separate property of the wife, and the court held he had not that right. In discussing that case in Hobson v. Huxtable, 79 Neb. 334, 112 N.W. 658, this court said: "We do not think that this case established the doctrine contended for by the appellants that the wife must declare her formal consent to the selection of a homestead from her property. We think her consent will be presumed from the actual use of the property as a homestead, which presumption can only be overcome by proof that she did not in fact consent." The first paragraph of the syllabus in that case states: "The actual use of a dwelling as a family home is a sufficient election under the provisions of the homestead law."

Plaintiff attempted to overcome this presumption by contending that Mr Nielsen rented the home from her. After testifying to the purchase of the property, she testified as follows: "Q. Now, did you ever rent this property? A. Rented it to Mr. Nielsen. Q. And when did you begin to rent it? How soon after buying it did you begin to rent it to him? A. Well, I think he paid the first payment, the first rent on it, in November. Q. The Court: What year? The Witness: 1934. * * * Q. And what rent did he pay on this property which you bought? A. $ 32.95 a month. Q. And what had he been paying on the house on Ohio street? (Prior to this they had rented a house at 4136 Ohio street.) A. All the way from $ 32.50 to $ 20; he went down to $ 20. * * * Q. And how long did Mr. Nielsen rent that place of you? A. About eleven months. Q. That would be until the day of his death in September? A. The 28th of September. Q. 1936? A. 1935." On cross-examination she stated: "Q. And the payments to be made on the loan were, I think you stated, $ 32.95? A. That was including the mortgage and taxes. Q. And insurance? A. And insurance, I mean the taxes and insurance. Q. Any interest? A. No; $ 24.30 per month on the house and they...