In re Petersen's Estate
| Decision Date | 07 August 1939 |
| Docket Number | 6095 |
| Parties | In re PETERSEN'S ESTATE. PETERSEN v. PARRY |
| Court | Utah Supreme Court |
Rehearing denied November 10, 1939.
Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.
In the matter of the estate of Gwen Darling Parry Petersen deceased, of which Florence L. Parry is administratrix with the will annexed. From a judgment denying an application by Louis Petersen, deceased's surviving husband, to set apart to him a homestead in realty and exempt personal property from the estate, he appeals.
REVERSED AND REMANDED WITH DIRECTIONS.
E. D. Sorenson, of Salt Lake City, for plaintiff.
Ray Van Cott, of Salt Lake City, for defendant.
The husband of the deceased has appealed from an adverse judgment of the Third District Court on his application for an order setting apart to him a homestead and exempt personal property from the estate of the deceased.
Gwen Darling Parry Petersen died February 7, 1937, leaving her surviving a husband, appellant herein, no children, and a sister, Florence L. Parry, respondent. To the last named, she devised and bequeathed all her separate property consisting of an undivided one-half interest in a parcel of real estate in Salt Lake County which interest was worth $ 3,000; personal property which included tables and chairs worth less than $ 200 and money, bed, bedding, silverware, glassware, and linen worth $ 300. Mr. and Mrs. Petersen had never lived on the parcel of property devised by the will but had resided in Sandy, Salt Lake County, on a tract of land owned by the husband and worth $ 2,000. The facts are stipulated.
Florence L. Parry filed an inventory of the estate, following which the plaintiff instituted this proceeding, requesting the court to set apart to him a homestead of $ 2,000 in the devised property, the tables and chairs worth less than $ 200, the dishes, silverware, etc., worth $ 300. Defendant alleged in her answer that the property was the separate property of the deceased which she had a right to dispose of by will; that the plaintiff owned a home and homestead in Sandy worth more than $ 2,000 above encumbrances and kitchen and household goods and furnishings of a value in excess of the exemptions provided for by law; and denied that the plaintiff has any interest in or claim against the estate. As hereinabove stated, appellant's application was denied.
The assignments of error raise three principal questions: (1) Under the Constitution and statutes of Utah can a surviving husband declare a homestead in the wife's separate property which she has devised to another? (2) Can a homestead be set apart in property on which the parties have not lived and which is held in cotenancy? (3) Can a homestead be set apart to a surviving spouse who owns and possesses property of value in excess of the homestead exemption?
(1) Respondent admits that under Sec. 101-4-6, R. S. U. 1933, and the case of In re Mower's Estate, 93 Utah 390, 73 P.2d 967, a husband cannot deprive his widow of her homestead allowance by devising his property away from her; and she admits that under a dictum of the Mower case the same rule is applicable to efforts of a wife to deprive her surviving husband of a homestead; but she contends that Article XXII, Sec. 2 of the Constitution forbids application of the dictum since the Constitution gives a married woman the right to dispose of all of her separate property by will and if a homestead were carved out against her will she would have disposed of that much less than all by her will. For authority in support of this position respondent cites to us excerpts from the Proceedings of the Constitutional Convention and Bennett v. Hutchison, 11 Kan. 398, 26 Pacific State Rep. 301.
Article XXII, Section 2, of the Constitution provides:
"Real and personal estate of every female, acquired before marriage, and all property to which she may afterwards become entitled by purchase, gift, grant, inheritance or devise, shall be and remain the estate and property of such female, and shall not be liable for the debts, obligations or engagements of her husband, and may be conveyed, devised or bequeathed by her as if she were unmarried."
Section 101-4-6, R. S. U. 1933, reads as follows:
"A homestead as provided by section 1, title Homesteads, together with all 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 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 Proceedings of the Constitutional Convention, pages 1782-1784, seem to afford no help to respondent. A reading of all of the brief discussion of this section seems fairly to indicate that the members intended to give married women the right to keep and acquire separate property and dispose of it without hindrance from their husbands. The question of its effect on a husband's homestead right was not discussed one way or the other, although discussion of the homestead exemption section, which is Section 1 of Article XXII, immediately preceded that of this section. It is true that Mr. Varian said that the section would give a married woman her own property, "to be disposed of just as she sees fit," but he added, "without any control or limitation by the husband." It is patent that he had in mind giving women the right to dispose of their property without having to act through their husbands or with their consent. The remark was in response to the introduction of an amendment which would have required the husband's signature for disposition of the wife's separate property. Reference to these proceedings affords respondent but little help and seems rather to indicate that the framers of the Utah Constitution intended to remove married women's common law disability and gave no intimation that the word "all" was meant to restrict the power of the legislature to provide for a homestead in aid of the welfare of survivors of a married woman.
The very wording of the section in our opinion evidences this intent. The provision deals with the separate estate of a married woman--that acquired before marriage and all such to which she may thereafter become entitled. It provides that such property "shall be and remain the estate and property of such female"--that is, marriage shall not divest her of title in any of her property real or personal, nor vest any estate therein in her husband. It "shall not be liable for the debts, obligations or engagements of her husband." Absent statutory or constitutional provision, it, or a portion thereof, would be so liable at common law. It "may be conveyed, devised or bequeathed by her as if she were unmarried." This means that she may deal with her property, in the respects enumerated, as she might deal with it at common law were there not disabilities in the wife and estate vested in the husband by reason of marriage. The extent of the wife's common law disabilities and the nature of the husband's interest in the wife's estate at common law need not be here detailed. It is evident, however, that the very wording of the constitutional provision is such as to evidence an intent (1) to do away with the common law doctrines under which there was created by law an estate in the husband as an incident to marriage; and (2) so freeing it from such interest of the husband, give to the wife the right to dispose of it. Looking at the provision against its common law background, there is nothing in its wording which evidences an intention upon the part of its authors to go further and inhibit the legislature from placing upon the right to devise the limitation here in question. Its evident aim was to bring about equality, not inequality, between the parties to a marriage contract.
We have heretofore committed ourselves, in dicta, to this view. In re Mower's Estate, supra; Williams v. Peterson, 86 Utah 526, 46 P.2d 674; Morrison, Merrill Co. v. Clark, 20 Utah 432, 59 P. 235, 77 Am. St. Rep. 924; Culmer v. Wilson, 13 Utah 129, 44 P. 833, 57 Am. St. Rep. 713. And in the Mower case we stated our view of this very question. The Morrison, Merrill v. Clark and Culmer v. Wilson cases were decided under Sec. 2528, Comp. Laws of 1888, which plainly provided that the husband and wife should have the same rights, and those cases are therefore not authority for the question under a provision dealing only with women's rights. But in Re Mower's Estate [93 Utah 390, 73 P.2d 967, 972] the right to dispose of an estate by will, paramount to homestead claim, was before us and our expressed view that the married woman is free from marital control but has, by virtue of Article XXII, Section 2 of the Constitution and Sec. 101-1-3, R. S. U. 1933, "no rights different from those of her husband" was not given without consideration.
Our obiter dictum in the Mower case, expressed at page 402 of 93 Utah, at page 972 of 73 P.2d, seems sound in view of further consideration and analysis. We there said:
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