Bretz v. Moore

16 Ohio C.C. Dec. 66, 4 Ohio C.C. (n.s.) 556, 1902 Ohio Misc. LEXIS 243

• Court: Sandusky Circuit Court
• Decided: May 20, 1902
• Status: Published

Opinion

PARKER, J.

This is a proceeding brought to obtain a reversal of the judgment of the court of common pleas.

We shall not undertake to state or follow all the ramifications of the various questions that have been suggested and argued, for we think that the real controlling question can be very simply stated and comes within a very narrow limit.

Loia A. Moore, a widow, was entitled to a homestead out of certain premises of which her husband died seized, under Sec. 5437 Rev. 'Stat., and it appears that these premises were mortgaged and that the mortgage was one which precluded the allowance of a homestead, that is to say, that no homestead could be allowed as against the claim of the mortgage, the husband and wife, afterwards the widow, having both signed the mortgage. The husband beside leaving his widow, left certain children, who were all of age, and it fairly appears from the record that all the persons interested in this property as heirs — these children and the widow — foresaw that they would not be able to discharge this debt and lien except by the sale of the property, and therefore they agreed together that they would sell the premises and pay all encumbrances; and thinking that the administrator of the estate of the deceased husband and father would be entitled to hold and handle the proceeds of such sale and therefrom discharge any indebtedness of the decedent, they agreed that they would turn over the residue remaining after the discharge of the mortgage debt to the administrator, and in pursuance of this agreement, they proceeded to sell the premises and derived enough from the sale to pay off the mortgage and turn over seven or eight hundred dollars to the administrator, which they did. It turns out that probably the administrator could not have brought these premises to sale, as administrator, because there were no claims against the estate which would have required it. At all events, even if he might have brought it to sale for the mortgage claim (and about that we express no opinion) he was not required to take or use any of these proceeds of the sale that were turned over to him, the mortgage claim being paid directly by the widow and heirs. But they paid over the residue to him and he holds it, and the court of common pleas of Seneca county bas held, and we think correctly, that he never received or held it as administrator, bnt, under the circumstances, he held it as trustee.

Now the widow has asserted her claim to a part of these proceeds, as the value of her dower interest in this property, and that claim, I believe, is not contested. She has also asserted and here asserts her claim to the remainder of the proceeds in lieu of 'a homestead under Sec. 5437 Rev. Stat.

It is contended however, upon behalf of the heirs, that having consented to this arrangement and sale of the premises, she thereby waived her claim to a homestead; that she thereby abandoned her homestead; and that, as a consequence, she also waived and abandoned all right to claim any of the proceeds in lieu of, a homestead.

The contention by counsel for the heirs is, that it is only in cases where the property is brought to sale by the mortgagee or the administrator, or by some process of law, which compels a sale of the premises, that this provision of Sec. 5437 Rev. Stat. relied on by defendant in error, applies, viz., “That in all cases where the homestead has been or shall be sold to pay any lien which precludes the allowance of a homestead, the residue of the proceeds, not exceeding $500, shall be paid to the widow, or in case there be no widow, to the minor child, unmarried, in lieu of a homestead, on her or said minor child’s application, in person or by agent, attorney or guardian,” and that this provision of the statute does not apply to a sale voluntarily made by the heirs and the widow. But we think that a fair and reasonable construction of this statute authorizes an application of these provisions to a case like that at bar; that where the heirs and widow, foreseeing that a sale must be made to satisfy a claim and lien which precludes the allowance of a homestead, agree together that they can probably do better by making a private sale of the premises, and that they will do so, and that they will retain their rights in the proceeds rather than undertake to hold on to the property- and allow the premises to be brought to a forced sale, as between them, it would not lie with either to dispute the equitable rights of the other arising out of such proceeding; that in a case like this, the heirs being of age, and having full knowledge of the situation, and having agreed that the premises should be sold at private sale and having participated in the sale, and agreed that the proceeds should go into the hands of the administrator, and not having required of the widow that she should waive her homestead right, or her right to the proceeds in lieu of a homestead, and it not appearing that she has waived it, but rather that she desired and still desires to retain her right, it should be held that she has not lost such right. Though she has abandoned all claim to bold the premises as a homestead, she has not thereby necessarily abandoned her right under this clause of the statute to hold a part of the proceeds in lieu of a homestead. We think the statute should receive such fair, equitable and liberal construction; that it is the policy of the law to construe these exemption statutes liberally, so as to effect their purpose, and such sale should be held to be within the purview of the statute. It was a sale to pay a lien which precluded the allowance of a homestead. Under the circumstances the heirs cannot be heard to dispute that fact.

The judgment of the court of common pleas being in accordance with these views, will be affirmed.

Hull and Haynes, JJ., concur.