In re Leet's Estate
| Decision Date | 27 April 1922 |
| Citation | 104 Or. 32,206 P. 548 |
| Parties | IN RE LEET'S ESTATE. LEET v. BARR. |
| Court | Oregon Supreme Court |
In Banc.
Appeal from Circuit. Court, Multnomah County; George Tazwell, Judge.
In the matter of the estate of Mary E. Leet. Petition of Oliver E Leet against Bertha G. Barr, administratrix. Decree for defendant, and petitioner appeals. Affirmed.
See also, 202 P. 414.
John C. Shillock, of Portland, for appellant.
John W Kaste, of Portland, for respondent.
Since the former decision, In re Leet's Estate, 202 P 414, a rehearing was granted, and this cause has been reargued, and we are now of the opinion that the conclusion there reached was erroneous. The decision of this case, as we now view it, depends upon the construction and effect to be given to chapter 112, Laws 1919, comprising sections 221-226, Or. L., in its application to, and effect upon, the provisions contained in section 1234, Or. L.
The original Homestead Exemption Law (Laws 1893, p. 93), Laws 1905, c. 221, which comprised sections 221-226, L. O. L., was repealed by chapter 112, Laws 1919. That law was construed in Mansfield v. Hill, 56 Or. 400, 405, 107 P. 471, 108 P. 1007, and it was there held that it was "only a statute of exemption, and contains no other elements." Under this decision the only effect that could be given to it was that of exempting homesteads from execution. The court there said:
"A homestead is purely statutory, and therefore gives no greater right nor estate than the statute creates."
Referring to the word "death," which appeared in the last clause of that act, the court said:
When that case and the case of Wycoff v. Snapp, 72 Or. 234, 143 P. 902, were decided, section 1234, L. O. L., read as follows:
From the construction which the court, in Mansfield v. Hill, supra, placed upon the original Homestead Exemption Law, it is clear that that law did not have the effect of making inoperative the provisions of section 1234, L. O. L., as applied to an exempt homestead. It is also clear that, unless there was some other statute which had the effect of taking an exempt homestead from the operation of the provisions of section 1234, L. O. L., the latter statute was bound to control its disposal upon the death of its owner. Under the statute of descent and distribution as then and now in force, except for section 1234, L. O. L., the title to an exempt homestead upon the death of the owner would have vested in his lineal descendants, subject to the right of dower in the widow. But neither that statute nor the original Homestead Exemption Act had the effect of making the express directions contained in section 1234 inoperative as to such homestead. For that reason the homestead involved in the case of Wycoff v. Snapp, supra, and later the homestead involved in the case of In re Frizzell's Estate, 95 Or. 681, 188 P. 707, were controlled by section 1234, and were ordered to be set apart for the widow in each case as her separate property, as in both of these cases the owner of the exempt homestead had died before the repeal of the original Homestead Exemption Law.
But no such condition confronts us in this case. After the repeal of the original Homestead Exemption Law and the enactment of a new Homestead Exemption law, chapter 112, Laws 1919, comprising sections 221-226, Or. L., Mary E. Leet died testate in January, 1920. She left surviving her a second husband, Oliver E. Leet, and three adult children, the issue of a former marriage. At and prior to her death, the testatrix was living with her husband on the homestead involved here, which consisted of a dwelling house and lot. By the terms of her will she gave to her husband the sum of $10, and the residuum of her estate she gave and devised to her three children, reciting in her will that her husband had sufficient property to keep him in comfort for the remainder of his life, and that the property given to the children consisted of money and property left to her by her former husband, the father of her children, and her parents.
This case therefore, for the first time presents the question of whether section 1234, Or. L., as amended by chapter 37, Laws 1919, controls the disposal of an exempt homestead where the owner has died since the repeal of the original Homestead Exemption Law and the enactment of the present Homestead Exemption Law, or whether the present Homestead Exemption Law controls its disposal. The amendment of section 1234, L. O. L., referred to merely added to the statute the word "husband," and is of no importance so far as this question is concerned.
Section 225, Or. L., reads as follows:
"When the owner of any homestead shall die, not having lawfully devised the same, such homestead shall descend free of all judgments and claims against such deceased owner or his homestead estate, except mortgages lawfully executed thereon and laborers' and mechanics' liens, to the person and in the manner provided by law; provided, however, that such exemption shall not extend to any person other than a child, grandchild, widow or husband, and father or mother of the deceased owner; and provided further, such homestead shall be subject to and charged with the expenses of his last sickness and for his funeral and the cost and charges of administration."
Section 226, Or. L., reads as follows:
"When any homestead shall have been disposed of by the last will and testament of the owner thereof, the devisee shall take the same free of all judgments and claims against the testator of his homestead estate, except mortgages lawfully executed thereon and laborers' and mechanics' liens; provided, however, that such exemption shall not extend to any devisee other than a child, grandchild, widow or husband, and father or mother of the testator; and provided further, 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."
Chapter 112, Laws 1919, comprising sections 221-226, Or. L., was approved by the Governor on February 22, 1919, and was filed in the office of the Secretary of State on February 24, 1919, while chapter 37, Laws 1919, section 1234, L. O. L., and as amended comprising section 1234, Or. L., was approved by the Governor on February 10, 1919, and was filed in the office of the Secretary of State on February 11, 1919. Sections 225 and 226, being a part of the later act, must prevail over section 1234, Or. L., so far as the provisions of those two sections are in conflict with the provisions of section 1234, Or. L., as those two sections of the statute are the latest expression of the legislative will.
"Laws are presumed to be passed with deliberation, and with a knowledge of all existing law on the same subject." 1 Lewis' Suth. Stat. Const. § 246, p. 459.
That being so, the Legislature, with knowledge of the provisions of section 1234, Or. L., and of the decisions of this court in Wycoff v. Snapp, supra, and In re Frizzell's Estate supra, expressly provided that exempt homesteads upon the death of the owner should be disposed...
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