In re Mower's Estate

• Decision Date: 26 November 1937
• Docket Number: 5877
• Citation: 93 Utah 390,73 P.2d 967
• Parties: In re MOWER'S ESTATE. MOWER v. MOWER
• Court: Utah Supreme Court

73 P.2d 967

93 Utah 390

In re MOWER'S ESTATE.

MOWER v. MOWER

No. 5877

Supreme Court of Utah

November 26, 1937

Appeal from District Court, Seventh District, Sanpete County Dilworth Woolley, Judge.

Proceeding in the matter of the Estate of Charles A. Mower, deceased wherein Charles L. Mower qualified as executor, and wherein Rhoda Mower, widow of Charles A. Mower, deceased, renounced the terms of the will of Charles A. Mower, elected to take under the statutes, and petitioned the court to set apart to her a homestead and the exempt personalty. From an adverse judgment decree, the widow appears.

REVERSED, AND CAUSE REMANDED.

Larson & Larson, of Manti, for appellant.

L. R Christensen, of Mt. Pleasant, for respondent.

LARSON, Justice. FOLLAND, C. J., and HANSON, MOFFAT, and WOLFE, JJ., concur.

OPINION

LARSON, Justice.

This is an appeal from the district court of Sanpete county, and presents for determination two questions: (1) The construction and application of section 101-4-6, R. S. Utah 1933; (2) Are the expenses of administration, last illness and funeral, chargeable against the estate before deduction of the homestead, or of widow's one-third interest? There is no substantial dispute in the facts. The record reveals:

That Charles A. Mower, a resident of Sanpete county, died testate in January, 1934, leaving surviving him a widow, Rhoda Mower, the appellant, and some adult children by a former marriage. His will was admitted to probate in February following his death, and respondent, a son, qualified as executor. The inventory showed an estate appraised at $ 2,300, consisting of land and water right thereto. The will directed that the property be sold, and, after the payment of all debts, charges, and expenses of administration, the remainder be distributed, one-third to the widow, and two-thirds share and share alike to the children, all adults. The widow renounced the terms of the will, electing to take under the statutes, and petitioned the court to set apart to her a homestead of $ 2,000 in value, and the exempt personal property, under the provisions of section 101-4-6, R. S. Utah 1933. The court denied her petition, and decreed to her, under section 101-4-3, her distributive share of one-third of the property after payment of all liens, expenses of last illness and funeral, and charges of administration. The widow appeals, and presents for determination the two questions stated above. We consider them in order.

1. The first and most important question arises by virtue of the amendment in 1933 of section 6409, Comp. Laws Utah 1917. The statute as it read in the 1917 compilation was construed by the court in Re Schenk's Estate, 53 Utah 381, 178 P. 344, to the effect that, where decedent left a will, the homestead provisions of the section did not apply, and, where the widow renounced the will, she could claim her distributive one-third of the real property, but could not claim a homestead. Where, however, there was no will, she could claim a homestead, wholly exempt from the debts of decedent, as the absolute property of the widow and minor children. The trial court followed the ruling in the Schenk Case, and, were it not for the amendment of the section in 1933, that case would be controlling. We think that the amendment so changed the statute that the Schenk Case has no application. For purposes of comparison we set forth both sections. Section 6409, Comp. Laws Utah 1917, reads:

"A homestead consisting of lands and appurtenances not exceeding in value the sum of $ 2,000, and $ 250 additional for each minor child, together with all the personal property exempt from execution, shall be wholly exempt from the payment of the debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, or of the minor children in case there be no surviving husband or wife, to be set apart on petition and notice, at any time after the return of the inventory; provided, that the homestead selected shall be subject to any incumbrances given for the purchase price or by the consent of both husband and wife, and to mechanics' liens. This section shall not be construed to prevent the disposition by will of the homestead and exempt personal property."

As amended in 1933, the section (101-4-6, R. S. 1933) reads:

"A homestead as provided by section 1, title Homesteads, together with all personal property exempt from execution, shall be wholly exempt from payment of the debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, or of the minor children in case there is no surviving husband or wife, or of the surviving husband or wife in case there are no minor children, to be set apart on petition and notice, at any time after the return of the inventory."

The significant change is the dropping of the last or terminal sentence from section 6409. When section 6409, Comp. Laws Utah 1917, came before this court for construction in Re Schenk's Estate, 53 Utah 381, 178 P. 344, we held that the last sentence of the section compelled a construction which permitted a man to dispose of the homestead by will, regardless of the fact that it may leave his widow and minor children shelterless, homeless, and without support. That decision was based upon the terminal sentence of the homestead section. While this court there followed the plain language of the statute as it then stood, we criticized the statute as incongruous and inconsistent with the homestead provisions of the Constitution and unjust and unfair, and recommended that the statute be changed. The legislature in 1933 heeded the suggestions of this court and amended section 6409, Comp. Laws Utah 1917, by dropping the terminal sentence. Such an amendment of the statute, such an evident change in the statute after the part stricken had been subjected to stricture and censure by the court, cannot be said to be meaningless. We cannot, as is urged by respondent in an effort to make an harmonious union with some other old sections of the statute, say that the Legislature changed the statute just to make it mean what it did before the change; or that the Legislature did not mean to do what it did, just because it did not also change other sections to which we shall refer later.

We must give the Legislature credit for meaning to do what it did do, and then harmonize the act with other provisions if we can do so. To harmonize the section as amended with other provisions of the statute, it is not necessary to construe it as was done by the trial court and as contended by respondent. Such construction of this section is unnatural and results from a failure to reach a bedrock basis for the statutes and the provisions thereof.

Section 6409, Comp. Laws Utah 1917, quoted haec verba, supra, without the italicized terminal sentence, clearly creates an estate, absolute in the surviving spouse and minor children, exempt from all debts of the decedent, to be set apart on petition. In other words, it carries over the homestead right given by the Constitution, art. 22, § 1, and title 43, Comp. Laws Utah 1917, perpetuated as title 38, R. S. Utah 1933 (38-0-1 et seq.), so that the surviving spouse and also the minor children may, as could have been done during the lifetime of deceased, claim the homestead for their support and shelter. Realizing the absolute nature of this grant or estate as the "absolute property of the surviving husband or wife and minor children * * * to be set apart on petition and notice," the Legislature, for sufficient reasons as they then existed, provided in the terminal sentence, that, in case the deceased died testate, an exception should be made to the right of homestead otherwise granted. The terminal sentence should not be construed as merely a direction to read the section as part of the law or succession instead of the law of wills, but that it should be construed as meaning, "an exception to the homestead right is hereby made, in cases where the homestead is devised by will." The history of this section may help in an understanding of its import and meaning. In Laws of Utah 1884, chapter 5 of chap. 56, p. 407, are found the following provisions:

"Sec 2. Upon the return of the inventory or at any subsequent time during the administration, the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead selected, designated, and recorded; Provided, Such homestead was selected from the common property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected, designated, and recorded, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate, and set apart and cause to be recorded, a homestead for the use of the surviving husband or wife and the minor child or children; or if there be no surviving husband or wife, then for the use of the minor child or children, in the manner provided in this chapter, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent."

"Sec 5. When property is set apart to the use of the family, in accordance with the provisions of this Chapter, if the decedent left a widow or surviving husband, and no minor child, such property is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one-half of such property shall belong to the widow or surviving husband, and the...