Shearon v. Goff

• Decision Date: 27 February 1914
• Docket Number: 17,454
• Citation: 145 N.W. 855,95 Neb. 417
• Parties: THIRZA SHEARON, GUARDIAN, APPELLEE, v. J. ARTHUR GOFF, APPELLANT
• Court: Nebraska Supreme Court

145 N.W. 855

95 Neb. 417

THIRZA SHEARON, GUARDIAN, APPELLEE, v. J. ARTHUR GOFF, APPELLANT

No. 17,454

Supreme Court of Nebraska

February 27, 1914

APPEAL from the district court for Jefferson county: LEANDER M PEMBERTON, JUDGE. Reversed with directions.

REVERSED.

Hartigan & Wunder and C. H. Denney, for appellant.

Heasty & Barnes, F. L. Rain and F. N. Prout, contra.

FAWCETT J. ROSE and HAMER, JJ., dissent.

OPINION

FAWCETT, J.

Stella M. Goff, while the owner of the west half of the northwest quarter of section 27, township 3, range 2, in Jefferson county, died intestate, leaving her husband, defendant herein, and Bernice Hartman, her daughter by a former marriage, as her only heirs at law. At the time of her death she and the defendant were occupying the 80 acres of land above described as their homestead. It was incumbered by a mortgage of $ 1,650. Since the death of his wife defendant has been in possession of the property and has been receiving the rents and profits thereof. Plaintiff as guardian of Bernice instituted this suit in the district court for Jefferson county. She alleges, in substance, that Bernice is a minor under the age of 14 years, and is the owner in fee and entitled to the possession of the lands in controversy that the estate of Stella M. Goff, deceased, has been fully administered and the administrator discharged, and prays that defendant may be required to account for the rents and profits since the death of Mrs. Goff; that the title may be quieted in Bernice, and that she be given possession of the premises. Defendant for answer and cross-petition alleges that the heirs of decedent are Bernice and himself, the former inheriting three-fourths and he one-fourth of the estate, subject to his homestead interest; denies that there is anything due the guardian out of the rents and profits; prays that plaintiff's petition be dismissed, that his homestead interest in the property in the sum of $ 2,000 be confirmed in him, that the interests of the parties be found as above set out, subject to his homestead interest, that the land be partitioned, if it can be equitably done, and, if not, that it be sold subject to the mortgage, and the present worth of the interest of each of the parties be determined and the money divided according to such interests. Honorable F. N. Prout was appointed guardian ad litem of Bernice, and as such filed a reply and answer to the answer and cross-petition of the defendant, in which he admits that at the time of Mrs. Goff's death she and defendant occupied the land in suit, but denies that the same was occupied as a homestead; admits the mortgage; denies that defendant is entitled to the control of the land by reason of the fact that it is a homestead; alleges that Bernice has no property of any character except the premises in controversy, and that her guardian has supported, maintained and cared for her, that if a homestead right exists the same is for the care, nurture and protection of Bernice, and not for the use and benefit of the defendant; admits the heirship of defendant and Bernice in the proportions above stated; joins in the prayer of plaintiff's petition, and further prays that the court fully protect the rights of Bernice, and that, in the event it should be determined that defendant has a right of homestead, and that the same must be sold under a decree partitioning the same, the full value of the homestead be impounded by the court and ordered invested under its direction, and the income devoted to the care, nurture and maintenance of Bernice, and upon the death of defendant turned over to her or her guardian, that three-fourths of the remainder of the proceeds of the sale be disposed of for the use and benefit of Bernice. The district court found the relationship of Bernice and defendant, and their interests in the fee simple title of the land, as above set out, subject to the mortgage, and subject also to a homestead right therein in favor of defendant, to the amount of $ 2,000; that defendant by reason of his ownership of an undivided one-fourth interest is entitled to partition; that defendant is not the parent of Bernice, does not contribute to her support, and is not entitled to the sole use and benefit of the homestead interest in the premises, but should share the same equally with Bernice. A referee was appointed, and, he having reported that the premises could not be equitably partitioned, the land was sold, subject to the mortgage, for $ 2,857. The case came on for hearing on motion of plaintiff to confirm the sale. A rule was entered for all parties to show cause by 4 o'clock the same day why the sale should not be confirmed. At that hour, no objections having been filed, the court entered an order confirming the sale, and ordering that the proceeds be applied, first, to the payment of the costs, including the fees of the guardian ad litem and referee; that out of the residue of the proceeds of the sale the homestead interest in the sum of $ 2,000 be paid to the clerk of the court, to be by him, under the direction of the court, invested in some safe interest-bearing securities, and the income therefrom equally divided between Bernice and defendant during the lifetime of defendant, and at his death the full sum to be paid to Bernice; that the residue of the proceeds of the sale be divided, one-fourth to defendant and three-fourths to plaintiff as guardian of Bernice. From this judgment defendant has appealed.

As stated by counsel for plaintiff in their brief, but two questions are involved in this case: "First. Did a homestead right exist in favor of defendant at the time of the death of Mrs. Goff? Second. If such homestead right did exist, is Mrs. Goff's child entitled to any part of the income therefrom?" We shall not spend any time considering the first point. The evidence is uncontradicted that at the time of the death of Mrs. Goff she and the defendant were husband and wife and were occupying the land as their homestead. This being a fact, then the further fact that a homestead right exists in favor of defendant is too well settled in this state to require discussion. The nature and extent of that homestead right is involved in the second point.

Section 17, ch. 36, Comp. St. 1911, provides: "If the homestead was selected from the separate property of either husband or wife, it vests, on the death of the person from whose property it was selected, in the survivor for life, and afterwards in his or her heirs forever, subject to the power of the decedent to dispose of the same, except the life estate of the survivor, by will." The contention of plaintiff is that the homestead does not descend to the surviving spouse, individually, for life, but that it descends to the survivor and family; and Guthman v. Guthman, 18 Neb. 98, 106, is relied upon to sustain this contention. After considering the case, and at the close of the opinion, it is said: "It may not be out of place in this connection to say, for the guidance of the lower courts, that the homestead set apart and assigned to the petitioner in this proceeding must be held by her as well for the benefit of the respondent, Minnie Ellen Guthman, during her minority, as for herself, as a home, and while the same is rented out during said minority the said Minnie Ellen will be entitled to share equally with the petitioner in the net rental profits thereof." This language would seem to support plaintiff's view; but an examination of the case shows very clearly that the language used is entirely outside of the question litigated and decided. In that case the plaintiff filed her petition in the county court asking that her homestead be set off to her, and that her dower in the residue of the decedent's lands be admeasured and assigned. The county court sustained her contention, over the objection of the heirs, set off to her a quarter section of land as her homestead, and held that she was entitled to dower in the remaining lands of the decedent. On appeal to the district court it was there held that the county court was without jurisdiction to set apart the homestead to the petitioner, and that, the case being one on appeal, the district court was in like manner without jurisdiction. The judgment of the county court was therefore reversed as to the assignment of the homestead, and affirmed on the question of dower. On appeal to this court this judgment was entered: "The judgment of the district court in so far as it affirms the judgment of the county court is affirmed, and in so far as it reverses the judgment of the county court is reversed, and the judgment of the county court is in all things affirmed." This statement of the issues that were tried and determined both in the district court and in this court shows that the language quoted from the opinion was dictum pure and simple. The section of the statute under consideration has been so frequently construed by this court contrary to the dictum in Guthman v. Guthman, supra, that we will refer to enough of the cases to set that question at rest.

In Durland v. Seiler, 27 Neb. 33, 42 N.W. 741, our then and present chief justice, in construing this statute, said: "During the life of the owner of the fee the exempt character of the property was made to depend upon its occupation as a homestead. But upon his or her death a new title is created which vests in the survivor for life unconditionally."

In Nebraska Loan & Trust Co. v. Smassall, 38 Neb. 516 57 N.W. 167, it is held that under this statute, "if the homestead was selected from the separate property of either husband or wife, it vests on the death of the person from whose property it was selected in the survivor for life, and afterwards in his or her heirs forever, etc. This life...