Powell v. Powell

• Decision Date: 09 September 1941
• Docket Number: 30184.
• Citation: 116 P.2d 889,189 Okla. 255,1941 OK 259
• Parties: POWELL et al. v. POWELL et al.
• Court: Oklahoma Supreme Court

116 P.2d 889

189 Okla. 255, 1941 OK 259

POWELL et al. v. POWELL et al.

No. 30184.

Supreme Court of Oklahoma

September 9, 1941

Syllabus by the Court.

1. Where two or more tracts of land are claimed as a probate homestead by a surviving spouse, the proof must show actual occupancy by the deceased owner, or express intention on his part to occupy one tract, and facts and circumstances of using the other tract or tracts, or an intention to use the same, in connection with the occupied tract, in the interest and for the benefit of the family.

2. Record examined. Held the finding of the trial court that the separate tract of land was not used or intended to be used in connection with the occupied tract as a homestead was not against the clear weight of the evidence.

Appeal from District Court, Alfalfa County; J. W. Bird, Judge.

Proceeding in the matter of the estate of Edward A. Powell, deceased, of which H. B. Eaton was administrator, upon the application of Almeda T. Powell to set apart as widow's probate homestead both of two separate tracts of land, which application was opposed by John Powell and others. From an adverse judgment, Almeda T. Powell, the widow, appeals.

Judgment affirmed.

Carpenter & Hadwiger, of Cherokee, for plaintiffs in error.

Hill & Hill, of Cherokee, for defendants in error.

GIBSON Justice.

This is an appeal by a surviving wife from a judgment of the district court affirming an order of the county court rendered in the matter of a decedent's estate denying her application to set aside as her statutory or probate homestead both of two separate tracts of farm land.

The petitioner will be referred to herein as plaintiff, while the protestants, other heirs of decedent, will be referred to as defendants.

The tracts in question lay approximately two miles apart. One contained 37 acres, the other 80. At the time of intestate's death and for 20 years prior thereto he and the plaintiff had resided on the 37 acres. Two or three years after they first occupied the 37 acres deceased acquired the 80. At no time did he farm the latter tract. It was leased separately to tenants for every year except the last when it was leased with the 37 acres to one tenant. The income from both tracts was usually or always deposited in the bank in one account and checked on generally by deceased for the expenses of himself and the plaintiff. At one time they joined in a mortgage covering the 80 acres. In the briefs we find mention of certain agreements made with the federal government agencies concerning combined crops grown on the two tracts, but the record fails to show that these agreements were in evidence.

The trial court held that the 80 acres constituted no part of the statutory homestead, and plaintiff appeals, asserting that she was entitled to occupy both tracts as such.

The right here claimed by plaintiff arises under section 1223 O.S.1931, 58 Okl.St.Ann. § 311, which provides that upon the death of either husband or wife the survivor may continue to possess and occupy the whole homestead, which shall not in any event be subject to administration proceedings until it is otherwise disposed of according to law.

The homestead mentioned in the above statute is the probate homestead to be enjoyed by the surviving spouse as distinguished from the constitutional homestead exempted to the owner in his lifetime as head of the family, § 1, art 12, Const. Okl.St.Ann., but, as held in Re Estate of Gardner, 122 Okl. 26, 250 P. 490, "Whatever the homestead, as defined by section 1, art. 12 of the Constitution, may have been at the death of one spouse, the...