87 Neb. 443 | Neb. | 1910
This is an action in equity to confirm in plaintiffs title to a tract of land. Two of the plaintiffs were given partial relief, and the defendants appeal.
In 1880 Jasper Foster received a patent, under the federal homestead law, for the northeast quarter of section 30, in township 13, range 5 west, in Hamilton county. Foster occupied said real estate as his home until 1880, during which year he. died intestate, leaving him surviving six children and his widow. At that time Foster held an executory contract for the purchase of the southwest quarter of the southeast quarter of section 19, in said town and range, and owed thereon about $100. An administrator was duly appointed for Foster’s estate. Subsequently Foster’s widow made application according to the provisions of chapter 57, laws 1889, to have the 40 acres of land above described and the north half of said northeast quarter of section 30 appraised as the homestead of her late husband and herself. The county court proceeded in conformity with the terms of said act, found that said 120 acres of land had been selected by Jasper Foster as his homestead, and that the petitioner was entitled to select said land as her homestead. Appraisers were appointed and their appraisal was confirmed by the county court. The widow elected to accept the land at its appraised value, and paid to her adult children their proportion of two-thirds of such value over and above a mortgage lien thereon and the $1,000 interest therein, which said act purports to grant a widow in her deceased
By the terms of chapter 36, Comp. St. 1909, the head of a family is authorized to select a homestead not to exceed 160 acres in extent and $2,000 in value, which shall be exempt from sale upon attachment or an ordinary execution. Section 17 of said chapter provides that the homestead, if selected during the lifetime of the owner of the fee, shall upon his or her death vest for life in the surviving spouse, remainder, if not otherwise devised, in the heirs of the fee-holding spouse, and the quality of exemption is continued as against the creditors of the deceased. It has ever been the policy of the legislature to exempt a homestead from forced sale upon attachment or ordinary execution. At the time the present constitution was prepared by the constitutional convention and adopted by the people, an act entitled “An act to exempt the homestead of families from attachment, levy, or sale upon execution or other process issuing out of any court in the'
The constitution of 1866 (art. IV, sec. 4) provided that probate courts should not have authority to “order or decree the sale or partition of real estate,” otherwise the were to exercise such jurisdiction as might be provided by law. The constitution of 1875 is more positive in its restraint upon the jurisdiction of that court. The course of legislation and the decisions of this court up to and including 18X5 give no indication that the county court was vested with power to hear and determine an application to establish the existence, limits or value of a homestead, but the district court was the forum wherein all proceedings were prosecuted for the protection of that estate. In 1885, in Guthman v. Guthman, 18 Neb. 98, this court held that a county court has authority upon a widow’s application to set apart from her deceased husband’s lands the homestead, if none of the facts essential to create that estate are controverted. The reasoning is plain that the central fact to justify and support such an order is that the designated land or some part thereof constituted the homestead of the petitioner and her husband at the time of his death. This fact being made to appear, the law determines the estate of the widow and the interest of the remaindermen. The opinion in Guth
For the reasons above stated, the decree of the district court is in all things, save and except as to the subject of contribution, affirmed, and as to the matter of contribution, the cause is reversed and remanded for further proceedings. The costs taxed in this court will be equally divided between the appellees on the one part and the appellants on the other.
Judgment accordingly.