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72 Or. 234

Wycoff v. Snapp

Oregon Supreme Court

Decided September 8, 1914

Oregon Supreme Court · decided 1914-09-08

<p>Homestead—Exemption—Inheritance.</p> <p>1. Under Sections 221, 226, L. O. L., exempting the homestead from judicial sale, and providing that it shall be exempt after the death of the person entitled thereto from sale for the collection of any debts for which it could not have been sold during his lifetime, but such homestead shall descend as if “death” did not exist, is to be construed as if the word “exempt” appeared in place of the word “death,” and the property descends to the' heirs subject to the widow’s right of dower, exempt from execution for the previous debts of the deceased.</p> <p>[As to right to make a testamentary disposition of a homestead, see note in Ann. Oas. 1914B, 271.]</p> <p>Homestead—Rights of Surviving Spouse—Nature of Estate—“Property.”</p> <p>2. Under Sections 221, 226, L. O. L., exempting the homestead from sale after the death of the person entitled thereto for his debts, and Section 1234, authorizing the setting aside for the widow or minor children of deceased all the property of the estate exempt from execution, and declaring that the property thus set apart, if there be a widow, is “her property,” she takes a fee-simple estate in such property capable of alienation as well as of personal enjoyment.</p> <p>[As to suits by wives for and concerning homesteads, see note in 76 Am. Dee. 442.]</p>

Cited by 10 later decisions — most recently January 1939

10 state decisions

Key passage — most relied on by later courts

““The property being thus exempt from execution, it was competent for the county court to set it apart to the widow for the support of herself and the minor children, as provided in Section 1234, L. O. L.””

quoted by 1 later decision, including In Re Dunlap's Estate

Relies on Mansfield v. Hill

Good law ✅— No negative treatment on recordhow we know

Affirmed · Decided 1914-09-08

View the full empirical analysis of this case →

¶1Opinion by

Mr. Chief Justice McBride.

¶21. We are again called upon to construe the homestead exemption act, which may truthfully be said to be one of the best intended and worst drawn laws upon the statute books. In Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007), we had occasion to construe the words “such homestead shall descend as if death did not exist,” which are meaningless in themselves, and, after much consideration, were of the opinion that by some oversight or clerical error the word “death” had crept into the act in place of “exemption,” and construed the act as if the sentence read “such homestead shall descend as if such exemption did not exist.” The effect of this construction, to which we still adhere, is that the property descends to the heirs subject to the widow’s right of dower, and is exempt from execution for previous debts of the deceased.

¶32. The property being thus exempt from execution, it was competent for the County Court to set it apart *237to the widow for the support of herself and the minor children, as provided in Section 1234, L. O. L. As this section provides that the property so set apart to the widow “is her property,” it follows naturally that she takes a fee-simple estate therein capable of alienation as well as of possession and enjoyment: 6 Words and Phrases, 5698. The statute is a peculiar one, and we derive no assistance from the decision of the courts of other states made upon dissimilar enactments. It is evidently framed upon the idea that maternal affection will be a sufficient incentive to the widow to induce her to apply the proceeds to the use of her children as well as of herself. Whether an action would lie against her for failing to do so need not here be considered.

¶4The decree of the Circuit Court is affirmed.

¶5Affirmed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.
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