Iltz v. Krieger

202 P. 409, 104 Or. 59, 1922 Ore. LEXIS 3

• Court: Oregon Supreme Court
• Decided: April 27, 1922
• Status: Published

Opinions

McCOURT, J.

The order from which this appeal was taken was entered on July 2, 1920. Notice of appeal was served and filed on August 30, 1920, and the undertaking on appeal was filed on September 8, 1920. Exception to the qualifications of the surety was filed on September 10, 1920. The surety appeared for justification on November 9, 1920, and upon examination before the court was found qualified and sufficient. Counsel for respondent appeared at the examination of the surety and objected on the ground that the time for justification of the surety had expired. The transcript upon appeal was filed in this court on November 22, 1920. The motion to dismiss the appeal was filed on January 8, 1921. Affidavits against respondent’s motion to dismiss were presented by appellant, tending to show that the respondent was partly responsible for the delay of which complaint is made. It appears that appellant gave notice of appeal in good faith, and that she has prosecuted her appeal diligently. In support of the motion to dismiss, it is urged that Section 268, Or. L., limits the time within which a surety may justify, to not more than ten days after notice that exception has been taken to such surety, and that when the surety on an undertaking on appeal has justified after the expiration of that time, the cause is not brought within the jurisdiction of this court.

The effect upon an appeal of the failure of a surety to justify within the time prescribed by Section 268, Or. L., is declared by subdivision 4 of Section-550, Or. L.

In the case of Miller v. Arenz, 103 Or. 592 (193 Pac. 439), Mr. McBride, Chief Justice, speaking for the court, said:

“The law does not permit an indiscriminate extension of time to file an undertaking, but, in its solicitude for the privilege of every litigant to have his case heard upon appeal, it allows him to correct such error as'may arise from forgetfulness or even misconception of the procedure necessary to preserve his legal rights, if it appears that he has in good faith served and filed his notice of appeal, and attempted in like good faith to comply with the requirements of the statute as he understood them.”

In the latter case it was held that the effect of subdivision 4 of Section 550, Or. L., is to take away the mandatory, . jurisdictional character of those requirements upon appeal subsequent to giving and filing notice of appeal and to retain in the court jurisdiction of the appeal provided the party appealing complies later with some requirement omitted by mistake. The appellant offers to file a new undertaking and the statute authorizes this court to permit her to do so. It appears’, however, that all of the formalities required to furnish and file a proper undertaking were observed by appellant. Complaint is made only of delay in the appearance of the surety for justification. Nothing would be gained by requiring a new undertaking, moreover rule No. 23 of this court makes the following provision:

“All motions must be filed within ten days after a party or his attorney obtains knowledge of an alleged failure of the adverse party or his attorney to comply with the requirements of the statute or with the rules of this court, and unless so filed all defects, except objections to the jurisdiction of the court, will be taken as waived by the moving party.”

The motion to dismiss in this case was not filed until more than forty days had elapsed after respondent had knowledge of plaintiff’s failure to comply with the statute and as the default complained of is not jurisdictional, respondent waived the same. The motion to dismiss, therefore, is denied.

On the Merits.

The statute granting a homestead to the family as it existed at the time of the death of Henry Iltz did not continue the homestead to the widow or minor children, but provided that the homestead property should descend as if the exemption granted by the homestead law did not exist: Section 226, Or. L.

The right of a widow to have set apart to her the homestead of the family for the maintenance of herself and the minor children, if any, is granted by Section 1234, Or. L. The homestead thus created is frequently spoken of as a probate homestead.

“ * * In such a case the setting apart of such a homestead is a part of the probate proceeding as much as is a family allowance, and the manifest object of statutes providing therefor is to make provision for the support and maintenance of the family, these demands of the family being deemed superior to those of heirs or creditors * # .” 13 R. C. L. 688.

Where a family is in possession of real property that may be selected as a homestead, the title to which is in the husband and the latter dies intestate, the property descends to the heirs, subject to the right of the widoy to have such homestead set apart to her by the probate court as provided by Section 1234, Or. L.: In re Frizzell’s Estate, 95 Or. 681-688 (188 Pac. 707).

Section 1234, Or. L., as it existed at the time of the death of Henry Iltz, provided:

“Upon the filing of the inventory, the court or judge thereof shall make an order, setting apart, for the widow or minor children of the deceased, if any, all the property of the estate by law exempt from execution. The property thus set apart, if there be a widow, is her property, to be used or expended by her in the maintenance of herself and minor children, # * .”

The property of the estate exempt from execution, within the meaning of this statute, includes the homestead, if any, of the family, and when the probate court exercises its jurisdiction and makes an order setting apart the homestead to the widow, thereupon the -fee-simple title thereto, vests in her: In re Frizzell’s Estate, 95 Or. 687-689 (188 Pac. 707); Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902).

The title that passes to the heirs on the death of the husband is not divested until the homestead is set apart to the widow by the probate court in conformity with the requirements of the statute. Title to the homestead as such does not vest in the widow in the absence of an order of the probate court setting the same apart to her, but remains in the heirs: In re Frizzell’s Estate, 95 Or. 687-689 (188 Pac. 707); Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902); Estate of Boland, 43 Cal. 642.

The jurisdiction of the probate court to set aside exempt property to the widow continues until the administration is closed, in the absence of sale or other disposition placing the property embraced in the homestead beyond the control of the probate court.

Under the statute the widow is entitled to have set apart to her, residence property which was the actual abode of the family during the life of the husband and at his death and of the character and extent that could have been selected as a homestead during the life of the husband: Í3 ft. C. L. 689.

The probate court decided, and respondent contends, that the action of appellant in leaving the home of decedent, remarrying and taking up her abode with her new husband, lost her the right to have a homestead set apart to her; also that the order of the probate court, made upon her subsequent application and purporting to grant to her a one-third interest in fee in the real property of her deceased husband, barred her claim asserted later, to have the whole property set apart to her as a homestead; that her conduct in the respect last mentioned constituted an election to relinquish her right to have the homestead set apart to her, and a waiver of her right thereto.

The statute does not make continued residence by the widow upon the property claimed as a homestead, a condition to the exercise of the duty of the court to make an order setting the same apart to the widow: neither does it provide that the remarriage of the widow shall cut off her right to have exempt property set apart to her. The court cannot, by construction, place conditions upon the enjoyment of the rights granted by the statute which are not found, either expressly or by clear implication, in its language.

The remarriage and removal to the home of her new husband, does not disqualify a widow, to claim and have set apart to her the exempt property of the estate of her deceased husband, under Section 1234, Or. L.

It appears that the appellant was ignorant of her right to claim the real property of her deceased husband as a homestead when she applied to the probate court for a one-third interest in fee simple therein. Respondent contends that the order of the probate court, made upon the application of appellant, purporting to award to her a one-third interest in fee simple in the property, constitutes an election on the part of the appellant to waive or renounce her right to a homestead. The interest in the real property which was intended to be recognized by the order mentioned, was that defined by Chapter 331, Laws of 1917, and therein declared to be in lieu of dower.

Chapter 331, Laws of 1917, was an act to amend sections of the Code relating to dower and curtesy. Section 1 of the act amended Section 7286, L. O. L., to read as follows:

“Sec. 7286. The widow of every deceased person shall be entitled to dower, or the use, during her natural life, of one:half part of all the land whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof; provided, however, that any woman entitled to dower, may, at her election, take in lieu of such dower the undivided third part in her individual right in fee of the whole of the land whereof the husband was seized of an estate of inheritance at any time during the marriage, unless she is lawfully barred thereof. And provided further, that when a widow shall be entitled to an election under this section, she shall be deemed to have elected to take the undivided third of such lands unless within one year after the death of her husband she shall commence proceedings for the assignment or recovery of her dower.”

The provision of the statute granting a widow a one-third interest in fee in the lands of her deceased husband did not require any action of the probate court to vest the title in the widow. The title passed by virtue of the statute, in the absence of proceedings for the assignment or recovery of dower, within one year after the death of her husband. Whatever rights accrued to appellant under this statute, had fully vested before the order of the probate court was made.

There is a conflict in the authorities as to whether a widow who has accepted her dower right in the real property of her deceased husband’s estate or the distributive share thereof given to her by statute, is barred from thereafter obtaining a homestead therein. This conflict is accounted for largely, if not altogether, by the difference in the statutes of the several states.

“ * * As a general rule homestead and dower are regarded as co-ordinate estates, based on the theory that, as the interests of the mother and children are identical, the two estates should be made as far as possible to coexist in the same property. * * ” 13 E. C. L., p. 670.

Woerner on The American Law of Administration, Vol. 1 (2 ed.), Section 97, states the result of the judicial construction of the statutes of the several states as follows:

“ * * In Alabama, Arkansas, Florida, Illinois, Massachusetts, Michigan, Missouri, Nebraska, New Hampshire, South Carolina, Tennessee, Vermont, Virginia and Wisconsin, the right of homestead is held to be cumulative to and independent of dower, so that a widow may have both; while in Iowa, Georgia, .and North Carolina, she is put to her election to take one or the other, but is not entitled to both. * * ”

To the same effect are Waples on Homestead and Exemptions, pages 614-620, and Thompson on Homestead and Exemption, Sections 555-566.

Missouri has a statute providing for setting apart a homestead to the widow and also a statute similar to the Oregon statute above set forth. These statutes have received consideration by the Supreme Court of Missouri in several cases much like the instant case, among which are the following: McFadin v. Board, 188 Mo. 688 (87 S. W. 948); Gragg v. Gragg, 65 Mo. 343; Seek v. Haynes, 68 Mo. 13, and Chrisman v. Linderman, 202 Mo. 605 (100 S. W. 1090, 119 Am. St. Rep. 822, 10 L. R. A. (N. S.), 1205 and note). In the case of McFadin v. Board, 188 Mo. 688 (87 S. W. 948), the widow had elected to take a child’s part in lieu of dower in the real estate of which her husband died seized and the trial court found that she had no homestead interest in any of the real estate of which her husband died seized. Brace, Presiding Judge, speaking for the court, page 691 of the opinion, said:

íí # # without stopping to review the reasoning by which such a manifestly erroneous conclusion was reached, it is sufficient to say, that while that section does provide a way in which a widow’s dower may, so to speak, be swallowed up in her homestead, it provides none by which her homestead may be swallowed up in her dower, and necessarily so, for the homestead is not only for the widow but for the minor children. * * ”

The case of Gragg v. Gragg, 65 Mo. 343, was one in which the widow accepted 48 acres that had been set out to her as dower, out of a tract of 164 acres, left by her deceased husband. Three years later in a partition brought by the heirs, she asserted her claim to a homestead out of the same 164 acre tract. The court at page 348 of the opinion said:

“ * * But in this case there is no estoppel; there are none of the elements of estoppel. Her conduct deceived no one, and her success here will abridge the rights of no one. The heirs will get all they are entitled to under the law. Under the impression that the homestead right would not be claimed, or that the dower interest was all that the widow was entitled to, they have invested no money, nor done any act whatever to embarrass them, if she succeeds. We do not say that the widow may not, by her conduct, be estopped from asserting her homestead right. We are satisfied that she may, and Wright v. Dunning, supra, was a case in which the doctrine of estoppel was properly applied, but there is nothing in the case at bar which would justify a resort to that doctrine to prevent the widow of Benjamin Gragg from recovering her homestead in the premises in question. * # ”

The case of Seek v. Haynes, 68 Mo. 13, is one in which the widow caused her dower to be assigned and accepted the assignment, but being ignorant of her right to a homestead, did not then claim it. She was administratrix of her husband’s estate and procured from the probate court an order for the sale of all the lands of the estate, but no sale was ever made. The court, at page 17 of the opinion, said:

“ * * It is evident, * * that the trial court regarded the plaintiff, under the circumstances, as estopped to claim, or else had waived her homestead right.

“Neither theory was correct. She could not waive that of which she was ignorant, nor could she be estopped where her course of conduct had led no one to change his condition to his prejudice. If the contemplated sale of the real estate had taken place, and a creditor had bought the land, perhaps a different question would be presented; one not necessary to be now considered.”

Before the waiver of a legal right results, “there must be both knowledge of the existence of the right and an intention to relinquish it”: Fairview R. R. Co. v. Spillman, 23 Or. 587-592 (32 Pac. 688), Parker v. Hood River; 81 Or. 707-710 (160 Pac. 1158), and 27 R. C. L., pp. 908-910.

Where the law entitles a party to two rights, one of which is clearly intended as a substitute for the other, such party is compelled to elect or choose one of such rights, he cannot'have both: Norwood v. Lassiter, 132 N. O. 52 (43 S. E. 509, 510); Gilman v. Gilman, 54 Me. 453, 458; Salentine v. Mutual Ben. Life Ins. Co., 79 Wis. 580 (48 N. W. 855, 856, 12 L. R. A. 690); Van Steenwyck v. Washburn, 59 Wis. 483 (17 N. W. 289, 293, 48 Am. Rep. 532).

“ ‘Election is the obligation imposed on a party to choose between two inconsistent or alternative rights or claims in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both.’ ” Words & Phrases, First Series, pp. 2336, 2337; Second Series, pp. 233, 234.

The doctrine of 'election

“depends not upon technical rules, but upon principles of equity and justice, and upon actual intention. An election made in ignorance of material facts is, of course, not binding, when no other person’s rights have been affected thereby. So if a person, though knowing the facts, has acted in misapprehension of his legal rights, and in ignorance of his obligation to make an. election, no intention to elect, and consequently no election, is to be presumed.” Watson v. Watson, 128 Mass. 152.

The estate in fee simple which the widow might elect to take in lieu of dower, under Chapter 331, Laws of 1917, was not intended as a substitute for tbe widow’s right given by Section 1234, Or. L., to have the exempt property of the estate set apart to her. The homestead is restricted to one particular parcel of real property, while the right given by the 1917 statute, applies to all the parcels of real property of an estate, however numerous. The two rights mentioned are not- alternatives or substitutes, consequently the doctrine of election does not apply in respect thereto. If it did, still no election would be presumed in view of appellant’s ignorance of her right to a homestead and absence of intention upon her part to relinquish the same, no rights of third parties having intervened.

Reversed and remanded on rehearing April 27, 1922. (206 Pac. 550.) For appellant there was a brief over the name of Messrs. Richards & Richards, with an oral argument by Mr. Oren R. Richards. For respondent there was a brief over the names of Mr. M. K. Holland, Messrs. Carey <& Kerr and Mr. Omar C. Spencer, with an oral argument by Mr, Holland.

Appellant is entitled to have set apart to her a homestead in the real property of her deceased husband. Accordingly the order and decree of the Circuit Court is reversed and the cause is remanded, with directions to the Circuit Court to make an order setting apart to appellant, the real property in question, as exempt property of the estate of Henry Iltz, deceased. Reversed and Remanded.