By the Court,
Sweeney, C. J.:
This is an appeal from the judgment and order of the lower court refusing to set aside a homestead to the widow from the separate property of the husband, dying intestate. It appears that Walter M. Cook died intestate, leaving surviving him his widow, Clara Louise Cook, the appellant herein, who, with sisters, nieces, and a nephew, are his sole and only heirs at law. Among other property, his estate consisted of a tract of land, upon which appellant and deceased, in his lifetime, lived,, and which they occupied as their home. It is conceded that this tract of land was the separate property of the deceased, and that the same does not exceed in value the sum of $5,000. It further appears there was no community property in this estate. It also appears in the record that no homestead was declared upon the separate property of the deceased, Walter M. Cook, by himself or appellant, or that any homestead whatever was reserved by either of them from any property belonging to deceased or the appellant herein.
Appellant filed her petition asking to have this particular tract of land, together with the dwelling house situated thereon, and on which appellant and the deceased resided prior to and at the time of the death of deceased, and on which the appellant presently resides, set aside to her as a homestead, and the same was contested by other heirs at law of the deceased. After a hearing of the contest upon this issue, the court found the tract of land and dwelling house thereon in question not to exceed the value of $5,000, and to be property of such character that, had [231]*231it been filed upon during the lifetime of the deceased, it could have been homesteaded, but that under the laws of Nevada the court had no authority to set aside the separate property of the deceased husband as a homestead to the surviving wife, when the property remained the separate property of deceased at the time of his death.
The transcript on appeal, when resolved into the legal query for us to answer, is, Has the district court, when acting as a probate court, the power and authority to set aside as a homestead for the surviving wife separate property of the deceased husband?
Preliminary to passing upon this question, however, it will be necessary to pass upon respondents’ motion to dismiss the appeal, interposed upon the ground that the statement on appeal fails to contain the order of the lower court denying the motion for a new trial, from which this appellant has appealed. Among other authorities, in support of their contention, respondents rely chiefly upon the case of Kirman v. Johnson, 30 Nev. 146. In that case we properly held that "the order of the lower court denying the motion for a new trial, or, in its absence, the minute entry thereof, is required to be embodied in the statement on appeal to clothe this court with jurisdiction.” If the case at bar was not distinguishable from the Kirman v. Johnson case, supra, the motion to dismiss herein would have to be granted. There is, however, this distinguishing feature which vests this court with sufficient jurisdiction to take hold of this appeal, and decide the very interesting and important issue involved herein and never before determined in this state.
In the Kirman v. Johnson case, supra, among other matters in relation to the record therein presented, we stated: "An examination of. the papers appearing to have been sent up in this case fails to disclose any order in reference to the motion for a new trial, ór a copy thereof, nor does the certificate of the clerk mention any such order. So far as the record shows, there may never have been such an order made. ”
[232]*232In the case now under consideration, the certificate of the clerk does mention and refer to an " appeal from the order denying a new trial herein.” In the Kirman v. Johnson case there was no suggestion of a diminution of the record prior to or at the time of the argument on motion to dismiss; while in the present case an application was made to the court by counsel for appellant for the privilege of supplying the order denying the motion for a new trial, and the court, subject to the objection of counsel for respondents, granted the appellant the privilege of supplying the order within three days’ time; and the appellant, in compliance with such privilege, had filed within the time allowed a minute entry of said order complained of as absent from the record, and the same is now a part of the record on appeal before us.
While counsel for the appellant have gone to the extreme limit of the danger line of dismissal by their oversight or inadvertence in failing to have their record contain this most essential paper in the first instance for the consideration of this court.on appeal, and by the grace of a court rule and the indulgence of the court their appeal has been saved, yet, notwithstanning this close escape from a dismissal of the action without having the point involved passed on its merits, we feel it our duty to admonish counsel for appellant in the present case, and by this means warn other attorneys who are negligent in the preparation of their records on appeal, in future to personally supervise the making up of their records on appeal, and not to trust important rights to be jeopardized by relying upon the various clerks of the lower courts who, although entirely honest, willing, and conscientious, yet, by reason of the technical requirements of the statute, are not qualified enough in the knowledge of the law to prepare perfectly difficult transcripts containing all the essential papers. All attorneys should make it their especial duty to examine their transcripts on appeal before or at the time the transcripts leave the hands of the clerk of the lower court, when possible, and if a defect escapes their attention there, when discovered, within a sufficient [233]*233length of time before a motion to dismiss is set for hearing in this court, to avail themselves of any of their rights under the court rules at once, and not wait until the time the motion is being heard to apply to the indulgence of this court for relief, to the end that all cases may be heard on their merits. It is always distasteful to this court and an unpleasant duty to have to dismiss an appeal because of some inadvertence, neglect, or oversight of counsel, and particularly where important rights and questions involved should be decided on their merits.
We come now to a consideration of the sole and only issue presented to us, to wit, as to whether or not a widow is entitled to have set apart to her as a homestead the land and dwelling house thereon, when the same is the separate property of her husband at the time of his death, and there are other heirs. Before answering this question, in view of the fact that the right of homestead did not exist at common law, and is one of statutory origin, and that whatever homestead rights exist must be by virtue of the statutory law of the state and the construction given by the courts to those statutes, it will be necessary, in order to arrive at a proper solution of this question, to examine the homestead acts of this state, the same being embodied in the homestead act-of March 6, 1865, as amended in 1879, and as further throwing some light on the point at issue, those sections of law now in force in reference to the estates of deceased persons, which deal with homesteads and the duty of the probate judge with reference thereto.
Section 1 of the homestead act of 1865 (Stats. 1864-65, c.
Free access — add to your briefcase to read the full text and ask questions with AI
By the Court,
Sweeney, C. J.:
This is an appeal from the judgment and order of the lower court refusing to set aside a homestead to the widow from the separate property of the husband, dying intestate. It appears that Walter M. Cook died intestate, leaving surviving him his widow, Clara Louise Cook, the appellant herein, who, with sisters, nieces, and a nephew, are his sole and only heirs at law. Among other property, his estate consisted of a tract of land, upon which appellant and deceased, in his lifetime, lived,, and which they occupied as their home. It is conceded that this tract of land was the separate property of the deceased, and that the same does not exceed in value the sum of $5,000. It further appears there was no community property in this estate. It also appears in the record that no homestead was declared upon the separate property of the deceased, Walter M. Cook, by himself or appellant, or that any homestead whatever was reserved by either of them from any property belonging to deceased or the appellant herein.
Appellant filed her petition asking to have this particular tract of land, together with the dwelling house situated thereon, and on which appellant and the deceased resided prior to and at the time of the death of deceased, and on which the appellant presently resides, set aside to her as a homestead, and the same was contested by other heirs at law of the deceased. After a hearing of the contest upon this issue, the court found the tract of land and dwelling house thereon in question not to exceed the value of $5,000, and to be property of such character that, had [231]*231it been filed upon during the lifetime of the deceased, it could have been homesteaded, but that under the laws of Nevada the court had no authority to set aside the separate property of the deceased husband as a homestead to the surviving wife, when the property remained the separate property of deceased at the time of his death.
The transcript on appeal, when resolved into the legal query for us to answer, is, Has the district court, when acting as a probate court, the power and authority to set aside as a homestead for the surviving wife separate property of the deceased husband?
Preliminary to passing upon this question, however, it will be necessary to pass upon respondents’ motion to dismiss the appeal, interposed upon the ground that the statement on appeal fails to contain the order of the lower court denying the motion for a new trial, from which this appellant has appealed. Among other authorities, in support of their contention, respondents rely chiefly upon the case of Kirman v. Johnson, 30 Nev. 146. In that case we properly held that "the order of the lower court denying the motion for a new trial, or, in its absence, the minute entry thereof, is required to be embodied in the statement on appeal to clothe this court with jurisdiction.” If the case at bar was not distinguishable from the Kirman v. Johnson case, supra, the motion to dismiss herein would have to be granted. There is, however, this distinguishing feature which vests this court with sufficient jurisdiction to take hold of this appeal, and decide the very interesting and important issue involved herein and never before determined in this state.
In the Kirman v. Johnson case, supra, among other matters in relation to the record therein presented, we stated: "An examination of. the papers appearing to have been sent up in this case fails to disclose any order in reference to the motion for a new trial, ór a copy thereof, nor does the certificate of the clerk mention any such order. So far as the record shows, there may never have been such an order made. ”
[232]*232In the case now under consideration, the certificate of the clerk does mention and refer to an " appeal from the order denying a new trial herein.” In the Kirman v. Johnson case there was no suggestion of a diminution of the record prior to or at the time of the argument on motion to dismiss; while in the present case an application was made to the court by counsel for appellant for the privilege of supplying the order denying the motion for a new trial, and the court, subject to the objection of counsel for respondents, granted the appellant the privilege of supplying the order within three days’ time; and the appellant, in compliance with such privilege, had filed within the time allowed a minute entry of said order complained of as absent from the record, and the same is now a part of the record on appeal before us.
While counsel for the appellant have gone to the extreme limit of the danger line of dismissal by their oversight or inadvertence in failing to have their record contain this most essential paper in the first instance for the consideration of this court.on appeal, and by the grace of a court rule and the indulgence of the court their appeal has been saved, yet, notwithstanning this close escape from a dismissal of the action without having the point involved passed on its merits, we feel it our duty to admonish counsel for appellant in the present case, and by this means warn other attorneys who are negligent in the preparation of their records on appeal, in future to personally supervise the making up of their records on appeal, and not to trust important rights to be jeopardized by relying upon the various clerks of the lower courts who, although entirely honest, willing, and conscientious, yet, by reason of the technical requirements of the statute, are not qualified enough in the knowledge of the law to prepare perfectly difficult transcripts containing all the essential papers. All attorneys should make it their especial duty to examine their transcripts on appeal before or at the time the transcripts leave the hands of the clerk of the lower court, when possible, and if a defect escapes their attention there, when discovered, within a sufficient [233]*233length of time before a motion to dismiss is set for hearing in this court, to avail themselves of any of their rights under the court rules at once, and not wait until the time the motion is being heard to apply to the indulgence of this court for relief, to the end that all cases may be heard on their merits. It is always distasteful to this court and an unpleasant duty to have to dismiss an appeal because of some inadvertence, neglect, or oversight of counsel, and particularly where important rights and questions involved should be decided on their merits.
We come now to a consideration of the sole and only issue presented to us, to wit, as to whether or not a widow is entitled to have set apart to her as a homestead the land and dwelling house thereon, when the same is the separate property of her husband at the time of his death, and there are other heirs. Before answering this question, in view of the fact that the right of homestead did not exist at common law, and is one of statutory origin, and that whatever homestead rights exist must be by virtue of the statutory law of the state and the construction given by the courts to those statutes, it will be necessary, in order to arrive at a proper solution of this question, to examine the homestead acts of this state, the same being embodied in the homestead act-of March 6, 1865, as amended in 1879, and as further throwing some light on the point at issue, those sections of law now in force in reference to the estates of deceased persons, which deal with homesteads and the duty of the probate judge with reference thereto.
Section 1 of the homestead act of 1865 (Stats. 1864-65, c. 72), as amended in 1879 (Stats. 1879, p. 140; Compiled Laws, 550), provides as follows: "The homestead, consisting of a quantity of land, together with the dwelling house thereon and- its appurtenances, not exceeding in value five thousand dollars, to be selected by the husband and wife, or either of them, or other head of a family, shall not be subject to forced sale on execution, or any final process from any court, for any debt or liability contracted or incurred after November thirteenth, in the [234]*234year of our Lord one thousand eight hundred and sixty-one, except process to enforce the payment of the purchase money for such premises, or for improvements made thereon, or for legal taxes imposed thereon, or for the payment of any mortgage thereon, executed and given by both husband and wife, when that relation exists. Said selection shall be made by either the husband or wife, or both of them, or other head of a family, declaring their intention in writing to claim the same as a homestead. Said declaration shall state when made by a married person or persons that they or either of them are married, or if not married, that he or she is the head of a family, and they or either of them, as the case may be, are at the time of making such declaratton, residing with their family, or with the person or persons under their care and maintenance on the premises, particularly describing said premises, and that it is their intention to use and claim the same as a homestead, which declaration shall be signed by the party or parties making the same, and acknowledged and recorded as conveyances affecting real estate are required to be acknowledged and recorded; and from and after the filing for record of said declaration, the husband and wife shall be deemed to hold said homestead as joint tenants; provided, that if the property declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead rights shall cease in and upon said property, and the same belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead; and, provided further, that tenants in common may declare for homestead rights upon their respective estates in land, and the improvements thereon; and hold and enjoy homestead rights and privileges therein, subject to the rights of their cotenants, to enforce partition of such common property as in other cases of tenants in common.”
[235]*235Section 4 of said act (Stats. 1879, p. 141; Compiled Laws, 553) provides as follows: "The homestead and all other property exempt by law from sale under execution, shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit and that of his or her legitimate child or children; and in the event of there being no surviving spouse, or legitimate child or children of either, then the property shall be subject to administration and to the payment of his or her debts and liabilities; provided, that the exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons, except when they have the care and maintenance of minor brothers and sisters, or both, or of a brother’s or sister’s minor children, or of a father or mother, or of grandparents, or unmarried sisters living in the house with them; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person, the property shall descend to his or her heirs, as in other cases, unless disposed of .by will, subject to administration and the payment of debts and liabilities; and, provided further, that no exemption to the surviving spouse shall be allowed in cases where the homestead declaration has been filed upon the separate property of either husband or wife, as provided in section one of this act; provided, nothing in this act shall be held or construed to in any manner affect existing rights or pending litigation; but all such rights and litigation shall be determined by the act before in force, and of which this act is amendatory. ”
Section 101 of an act to regulate the settlement of the estates of deceased persons; enacted in 1897, and now in force (Stats. 1897, p. 134; Compiled Laws, 2886) provides as follows: "Upon the return of the inventory or at any time thereafter during the administration, the court or judge, of his own motion or on application, may set apart for the use of the family of the deceased all personal property which is exempt by law from execution, and the [236]*236homestead as designated by the general homestead law now in force, whether such homestead has theretofore been selected as required by said law or not, and the property thus directed to be set apart shall not be subject to administration.”
It is conceded by both parties in the present case that the homestead now attempted to be carved out of the estate of the deceased was at all times during the marriage of deceased, prior to his death, and at the time of his death, the separate property of the deceased, and, further, that at no time was there ever a declaration of homestead filed by either party upon said property in- controversy.
This court has repeatedly and properly held, under our homestead laws, that if the property be community property, and a declaration of homestead has been filed thereon by either party, the homestead at the time of the death of either spouse vests in the survivor (Smith v. Shrieves, 13 Nev. 303); and that, where the property is community property, the homestead right does not cease on the death of one of the spouses (Roberts v. Greer, 22 Nev. 318) and that, where the property involved is community property, the court must set aside the property to the surviving spouse, even though it were not declared upon during the life of the deceased (Estate of David Walley, 11 Nev. 260); and that, in a case where a person is entitled to a homestead right to community property upon the death of either party, even though childless, the homestead right does not cease, and the.property is exempt from the debts of the surviving spouse, or forced sale by execution. (Roberts v. Greer, 22 Nev. 318.) In the present case, however, the property involved being conceded separate property, a new and different question presents itself.
It is strongly insisted by counsel for appellant that it is immaterial whether the property be separate or community property at the time of the death of the husband, and that the district court is privileged, and it is its duty, under the power vested in' the court by section 101 of the act regulating the estates of deceased persons, supra, to set aside a homestead for the surviving spouse. In answer [237]*237to this contention, it must be stated that the district court has no authority to create a homestead otherwise than as designated by existing statute, and the statute plainly negatives the position of appellant as to separate property wherein it says: "That if the property declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouse, then and in that event the homestead right shall cease in and upon said property, and the same belong to the party (or his or her heirs) to whom it belonged when filed upon as a homestead.' * * *”
It is unnecessary to determine, under the act of 1861 (Stats. 1861, c. 55), regulating the settlement of estates of deceased persons, prior to the amendment of the homestead act of 1865 by the amendment of 1879, whether the district court, acting in estate matters, had the power to set aside a homestead to the widow out of the separate property of the deceased husband. The homestead act of 1865, as well as the original homestead act of 1861, made no distinction between separate and community property. Separate and community property were not defined by statute until 1873, when "An act defining the rights of husband and wife” was adopted (Compiled Laws, 510-544), excepting that the separate property of the wife was defined in the constitution.. (Article 4, sec. 31.) The amendment of 1879 to the homestead act worked a radical change in the former provisions, and by clear and unmistakable language the legislature evinced its intent that the homestead exemption as to separate property should only exist where both husband and wife joined in the declaration, and then that it should cease upon the death of either spouse, and the property " belong to the party (or his or her heirs) to which it belonged when filed upon as a homestead. ” By this amendment, separate property, upon the death of either spouse, stood in the same condition as though no homestead right had ever attached. The legislature was particular to provide [238]*238that if it was the separate property of the surviving spouse it still was the separate property of such spouse, freed from the homestead exemption, and that' if it was the separate property of the deceased spouse it should .descend to his or her heirs, likewise freed from the homestead exemption.
The act of 1861, regulating the settlement of estates of deceased persons, by section 123, made provision for the setting aside the homestead, as designated by the homestead law, to the widow and minor children, and to the widow in the event there were no minor children; and by section 126 of the same act it was provided that, in the event there was no law in force exempting property from execution, certain specified property should be set aside, including the homestead, as defined by that section.
The act of 1897, regulating the settlement of estates of deceased persons, repealed the similar act of 1861. Section 126, supra, of the act of 1861, was omitted entirely from the act of 1897, and section 123 of the former act, which corresponds to section 101 of the act of 1897, was modified. Section 101 of the act of 1897 is certainly no more specific in regard to the setting aside of the homestead than were sections 123 and 126 of the act of 1861.
If, after the amendment of the homestead act of 1865 by the amendment of 1879, the district court, under sections 123 and 126 of the act of 1861, regulating the settlement of estates, could still set aside homesteads out of the separate property of the deceased husband, then the legislature accomplished nothing by the said amendment of 1879, regardless of the fact that its intent was clearly manifested by the language used — a situation not to be contemplated.
If the construction contended for section 101, supra, of the act of 1897, is correct, then that section virtually repeals the amendment to the homestead act of 1879. Repeals by implication are not favored, and when two statutes are in pari materia it is the duty of the court to construe them with reference to each other, so that both may stand, if possible. This can be done in [239]*239the present case only by construing the words of section 101, supra, "the homestead as designated by the general homestead law now in force,” as not only relating to the character and value of the land which may constitute a homestead, but as such homestead right is affected by the other provisions of the statute " now in force, ” limiting the right. This construction gives force to all the various acts relative to homesteads, including section 11 of the "Act defining the rights of husband and wife” (Comp. Laws, 520), which also relates to the homestead set apart out of the community property.
While not strictly in point, because the language of the statutes is not the same, it may be noted that in the case of In re Eyere’s Estate, 7 Wash. 291, 34 Pac. 831, the Supreme Court of Washington reached the same conclusion as to the provisions of the statutes of that state as arrived at here.
Whether or not the legislature should make some more definite and liberal provisions for the support of the widow and minor children out of the separate property of the husband is a matter for that branch of government to determine.
The property in question being conceded to be the separate property of deceased at the time of his death, and the said Walter M. Cook dying intestate, the court below, not possessing any legislative power to alter the law as it is written, properly refused to set aside the tract of land and dwelling house in question as a homestead, and properly decreed it subject to administration and distribution pursuant to the law of distribution now existing in this state, and in consequence the judgment and order appealed from must be affirmed.
Let such be the order.