In re Leet's Estate

• Decision Date: 29 November 1921
• Citation: 202 P. 414,104 Or. 32
• Parties: In re LEET'S ESTATE. v. BARR et al. LEET
• Court: Oregon Supreme Court

202 P. 414

104 Or. 32

In re LEET'S ESTATE.

LEET v. BARR et al.

Supreme Court of Oregon

November 29, 1921

Burnett C.J., dissenting.

In Banc.

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

Petition by Oliver E. Leet against Bertha G. Barr, as administratrix of the estate of Mary E. Leet, deceased, and others. Decree for defendants, and petitioner appeals. Reversed and remanded, with directions.

This appeal is prosecuted from an order of the circuit court of Multnomah county, denying appellant's application to have set apart to him as exempt property of the estate of his deceased wife, Mary E. Leet, pursuant to section 1234, Or.L the real property that was the actual abode of and occupied by appellant and decedent at the time of the death of the latter. The real property in question was acquired by Mary E Leet in May, 1918, with moneys that were her separate property, and title thereto was vested in her at the time of her death. Besides appellant, Mary E. Leet left surviving her three adult children by a former marriage. By her last will made on the 19th day of February, 1916, she bequeathed to appellant the sum of $10, and, subject to the right of appellant as tenant by curtesy therein, devised all of her real estate to her son and two daughters. Until about the time he filed his said petition in the circuit court, appellant was without knowledge or information that the statute provided for the setting apart to a husband the exempt property of the estate of his deceased wife. Some time after the death of Mary E. Leet, appellant received and accepted the bequest of $10, made to him by the last will of the decedent, and appellant also ceased to occupy the property which he seeks to have set apart to him as a homestead, and thereafter with his consent the property was occupied by tenants, and appellant received one-half of the rents therefrom for over a year. Subsequently upon being informed that he might claim a homestead in the property, he thereupon returned thereto, and occupied one room in the dwelling house, and asserted his claim to have the property set apart to him as a homestead. In the meantime the administratrix had filed her final account, and distribution of the property of the estate had been ordered, all without objection from appellant. The devisees under the will, one of whom is the administratrix of the estate, stoutly resist appellant's claim to a probate homestead in the real property in question.

John C. Shillock, of Portland, for appellant.

John W. Kaste, of Portland, for respondents.

McCOURT J. (after stating the facts as above).

The statutory provision for setting apart to the husband the exempt property of the estate of his deceased wife was incorporated into section 1234, Or.L., by chapter 37 of Laws of 1919. The contention made and rejected by this court in the cases of Wycoff v. Snapp, 72 Or. 234, 143 P. 902, and in Re Frizzell Estate, 95 Or. 681, 188 P. 707, that section 1234, Or.L., applies to personal property of the estate only, and does not include the real property embraced in the family homestead, is renewed in this case. While those cases are decisive of the point, we have again carefully examined the question, and we are satisfied that the construction given the statute in the cases mentioned is correct and is in harmony with the manifest purpose of the homestead statute. The conclusions there reached and here reaffirmed are supported by many decisions of courts of last resort of other states in cases construing analogous statutes.

It is also insisted that, conceding the correctness of the construction there placed upon section 1234, Or.L., in connection with the statute providing for a family homestead, as those statutes existed at the time of the decisions mentioned, still that construction cannot prevail in view of the amendment of the homestead statute (Laws 1919, ch. 112) for the reason that the last-mentioned amendatory act was enacted at a later date in the same legislative session that granted to a surviving husband the right to have set apart to him the exempt property of the estate of his deceased wife. The argument is advanced that the amended homestead statute expressly creates a right in the owner of the homestead property to freely dispose of the same by will, and that the later act is inconsistent with the earlier act (section 1234, Or.L.) passed at the same legislative session, and by implication repealed the same in respect to homestead property. By way of enforcing the argument, attention is directed to chapter 351, Laws of 1919, which declares that a married woman may by will dispose of any real estate held in her own right, subject to any right which her husband may have as tenant by curtesy, and that every person of the age of 21 years or upward may devise all of his estate, real and personal, saving to the widow her dower. The statute last mentioned constitutes a reenactment of statutory provisions that have been in force throughout the life of the state, and which were fully considered by this court in deciding the case In re Frizzell's Estate.

Prior to the 1919 enactment, the homestead statute did not in any way control the descent of the real property embraced in the homestead. Under that statute such real property passed to those designated in the general statute regulating the descent of real property, unless set apart to the widow by the probate court as exempt property of the estate, as authorized and commanded by section 1234, Or.L.; Wycoff v. Snapp, 72 Or. 234, 143 P. 902; In re Frizzell's Estate, 95 Or. 681, 188 P. 707. That statute contained no provision concerning testamentary disposition of the homestead property, but this court held in Re Frizzell's Estate that the power of testamentary disposition is subordinate to the authority conferred by statute on the probate court to set apart as exempt property the homestead for the use of the widow and minor children. Mr. Justice Bennett, speaking for the court, at page 688 of the opinion, said:

"We think a statute intended for so just and beneficial a purpose should be liberally construed in the interests of the widow and children. It follows that any devise by which the husband and father attempts to convey the property to other persons by will, to take effect after his death, is void as against their claim to have the property set aside to them."

The rule expressed in the above quotation is abundantly supported by authority. Alexander, Commentaries on Wills, vol. 1, § 252; volume 3, § 1424; Thompson on Homestead and Exemptions, § 544; Waples on Homestead and Exemptions, p. 446; Sulzberger v. Sulzberger, 50 Cal. 385; Estate of Lahiff, 86 Cal. 151, 24 P. 850; Estate of Walkerly, 108 Cal. 627, 655, 41 P. 772, 49 Am.St.Rep. 97; Estate of Huelsman, 127 Cal. 275, 59 P. 776; Estate of Bump, 152 Cal. 274, 92 P. 643; Otto v. Long, 144 Cal. 144, 77 P. 885; In re Kennedy Estate, 157 Cal. 517, 29 L.R.A. (N.S.) 428, 108 P. 280; In re Davis' Estate, 69 Cal. 458, 460, 10 P. 671; In re James' Estate, 38 S.D. 107, 112, 160 N.W. 525; Bell v. Bell, 84 Ala. 64, 4 So. 189.

The amended homestead act (Laws 1919, ch. 112) does not purport to change or prescribe the course of descent of a family homestead, and does not contain any grant of arbitrary or other right or power to dispose of the homestead by will. It merely exempts from the debts of the owner the homestead property in the hands of particular heirs or devisees designated in the statute, so that the rule, declaring that the right of the widow to have the homestead property set apart to her is paramount to the right of testamentary disposition which prevailed under the former enactment, applies with equal force to the present statute. The power of testamentary disposition of the homestead property conferred upon a married woman by statute is subordinate to the authority conferred upon the probate court to set apart the property to her surviving husband for his support and that of the minor children.

But it is said that, inasmuch as Mary E. Leet acquired the property before the statute authorized exempt property to be set apart to a surviving husband, she became vested with the right to dispose of the property by will, free from the requirement of the later statute to set the same apart to appellant. It is further asserted that decedent's right of testamentary disposition of the property was a natural right, inherent in the ownership of the property, and one that cannot be restricted or taken away by legislative enactment subsequent to her acquisition of the property.

The right to make a testamentary disposition of property is not an inherent, natural, or constitutional right, but is purely a creation of statute and within legislative control. 28 R.C.L. 68, 69; 40 Cyc. 997; Church's Probate Law and Practice, vol. 3, p. 2069; U.S. v. Perkins, 163 U.S. 625, 16 Sup.Ct. 1073, 41 L.Ed. 287; Irwin v. Rogers, 91 Wash. 284, 157 P. 690, L.R.A. 1916E, 1130.

Likewise the right to take by devise or inheritance exists by grace of the statute. Otto v. Long, 144 Cal. 144, 147, 77 P. 885; Estate of Bump, 152 Cal. 274, 277, 92 P. 643.

In the case of Otto v. Long above cited, Justice Shaw, speaking for the court said:

"The persons who, by grace of the statute, are designated or constituted heirs or devisees, have no ground for a claim that they are deprived of their property without due process of law merely because the same statutory law which provides that they shall inherit, and that property may be disposed of by will, has also provided that notwithstanding such heirship or testamentary disposition, the court having jurisdiction of the estate of the deceased before distribution may, under certain conditions, to be by it determined...