Knudsen v. Hannberg

• Decision Date: 03 August 1892
• Court: Utah Supreme Court
• Parties: ANE KNUDSEN, RESPONDENT, v. JULIUS HANNBERG AND OTHERS, APPELLANTS

30 P. 749

8 Utah 203

ANE KNUDSEN, RESPONDENT, v. JULIUS HANNBERG AND OTHERS, APPELLANTS

Supreme Court of Utah

August 3, 1892

APPEAL from a judgment of the district court of the first district and from an order refusing a new trial. The opinion states the facts.

Case remanded. Appellant entitled to costs.

Messrs King and Houtz, for the appellant.

Messrs Kellogg and Corfman, for the respondent.

MINER J. ZANE, C. J., and ANDERSON, J., concurred.

OPINION

MINER, J.

The facts are stated in the opinion. This case came on for trial before the first district court upon the following agreed statement of facts: "(1) James Knudsen died intestate July 30, 1890. (2) The defendant Julius Hannberg was duly appointed administrator of the estate of the said deceased, and ever since has been, and now is, administrator of the said estate. (3) That after paying all the debts and liabilities of said estate, including costs of administration there is left in the hands of the administrator, as assets of the said estate, real estate of the value of $ 3,500, and personal property of the value of $ 850. (4) That James Knudsen left, as heirs at law, plaintiff, Ane Knudsen, his widow, in possession of said real estate and personal property in Provo City, county of Utah, Territory of Utah. (5) That, besides this plaintiff, said deceased left three children by a former marriage, to-wit: James C. Knudsen, aged 20 years, Ida Amelia Knudsen, aged 14 years, and Nels William Knudsen, aged 11 years, who resided apart from him. (6) That on the day of March, 1891, this plaintiff filed her petition for an order setting apart to her a homestead and personal property exempt from execution by law, and for her support until said estate was settled. A copy of said petition is hereunto attached. (7) That on the day of , 1891, said probate court allowed $ 10 per month to the plaintiff, but reserved the question of homestead and exempt property. (8) That on the 16th day of January, 1892, the probate court in and for Utah county refused said petition, and ordered distribution of said estate, without any reference to exemption or homestead right. A copy of said order is hereunto attached. (9) That plaintiff duly appealed from said refusal and from said order of distribution to this court. (10) It is further stipulated as facts that Ane Knudsen, appellant, married the deceased on the day of November, 1888, and that all the property now in the hands of Julius Hannberg, administrator, was acquired by said deceased prior to said marriage. (11) That after said marriage, to-wit, on the day of March, 1891, said James Knudsen, deceased, gave to the said Ane Knudsen, his wife, as and for her own property, $ 1,000, which she received and took possession of. (12) That there are no other heirs at law of said deceased than those above named, and that all of said children are minors. (13) That the said James Knudsen, deceased, and the mother of said children, were divorced on the 27th day of July, 1881, and the mother was decreed to have exclusive care and custody of said children, and the property of said James Knudsen, deceased, at that time was amicably divided between said James Knudsen and the mother and children aforesaid; and thereupon the court made and entered its decree, as follows: 'Decree of Court. Wherefore all and singular the law and the evidence being by the court understood and considered, it is ordered and decreed: (1) That real estate to the value of $ 1,500, including the dwelling house thereon and its appurtenances, occupied by James Knudsen, Ane Knudsen, his wife, as a home in the lifetime of the former, and since his death by said Ane Knudsen, his widow, this plaintiff, be set off to her as a homestead, by metes and bounds, by commissioners to be appointed by this court, to be occupied by her as a homestead during her life; provided, she remains in possession and continues to occupy it as a homestead, remainder being to the heirs of James Knudsen, deceased. (2) That the exempt personal property petitioned for by the plaintiff, to-wit, one horse, one buggy, one cow, one wagon, one harrow, one cultivator, one plow, one harness, one single harness, three tons of hay, 116 bushels of wheat, one corn sheller, one bedstead, one bed, one wardrobe, one lounge, one table, one cupboard, two chairs, one stove, be set apart for the plaintiff by an absolute title. (3) That plaintiff is entitled to an undivided one-third of the real estate, including the homestead, in fee, by succession; and to an undivided one-third of the personal property over the exempt personal property, by succession, to an absolute title. (4) And also that in remaining undivided two-thirds of the real estate, exclusive of the homestead, plaintiff has a dower interest to the extent of one-third its value remainder to the heirs of James Knudsen, deceased. (5) That the minor children, heirs of James Knudsen, deceased, before mentioned, are entitled by succession, each to the undivided one-third of so much of the said estate as does not go to the widow of said deceased, to-wit, two-thirds of the personal property over and above exemptions set apart to the widow; also two-thirds of the real estate outside of the homestead, but subject to the dower interest of the widow; also remainder in the widow's life estate, at her death.'" From this decree an appeal is taken, and error is assigned upon the conclusion of law and decree.

The questions presented by this appeal are new in this Territory, and our statutes are not sufficiently identical with those found elsewhere to make the adjudication of other courts of much assistance. In order to present the questions intelligibly, it will be necessary to refer to the several statutes of this Territory in force and bearing upon the question at the time this contention arose. Section 3429, Comp. Laws 1888, exempts certain real and personal property from execution; and subdivision 11 provides that, if the debtor be the head of a family, there shall be a further exemption of a homestead to be selected by the debtor, consisting of lands, together with appurtenances and improvements thereon, not exceeding in value the sum of $ 1,000 for the judgment debtor, and a further sum of $ 500 for his wife, and $ 250 for each other member of his family; and it is further provided in what manner the homestead may be sold on execution or partitioned, if of greater value than is exempted under this section. Section 4113, Comp. Laws 1888, reads as follows: "When a person dies, leaving a widow or minor children, the widow or children, until letters are granted and the inventory is returned, are entitled to remain in possession of the homestead, of all the wearing apparel of the family, and of all the household furniture of the decedent, and are also entitled to a reasonable provision for their support, to be allowed by the probate court or the judge thereof." Section 4114, Comp. Laws 1888, reads as follows: "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 and support of the widow and minor children of the decedent, if there be a widow and minor children, and if no widow, then for the children, if there be any, and if no children, then for the widow, all the property of the decedent exempt from execution." Section 4117 provides how property set apart shall be apportioned. Section 4118 provides for the distribution of estates of less than $ 1,500 to the widow and children. Section 2741, Comp. Laws 1888, provides that the real and personal property of one who dies without disposing of it by will passes to the heirs of the intestate subject to the control of the probate court, and shall be distributed, * * * one-third to the surviving husband or wife, and the remainder in equal shares to his children. * * *"

The first question presented by the record is whether or not under the agreed state of facts in this case, the widow is entitled to a homestead right and the exempt property referred to in the statute, and given her by the decree. The real estate owned and occupied by the deceased and his widow at the time of his death consisted of five acres of land in Provo City, farm land, with a dwelling house thereon appraised at $ 3,500. This valuation exceeded the homestead limit. The personal property was appraised at $ 850. The three minor children of decedent by his divorced wife did not constitute a part of his family residing on the premises at the time of his death. There were no creditors of the estate, and the estate was...