285 P. 172 | Mont. | 1930
It is the general rule that homestead laws must be liberally construed in favor of the debtor. (Cross v. Benson,
A substantial compliance with the law is all that is required to make the declaration of homestead effective. (Simonson v.Burr,
It is not necessary to constitute one the head of a family that the person residing with her should be entirely dependent on her for care and support. The appellant did not have to be under a legal duty to support her daughter and grandchild to constitute her the head of a family. The ties of blood and kindred put her under a moral obligation to support them and that was sufficient. (Ellis v. White,
A moral duty to support those living with him will support a claim that one is the head of a family. (13 R.C.L., sec. 12;Sheehy v. Scott,
Persons who are able to earn a living are not dependents within the law relating to homesteads. (Galligar v. Payne, 34 La. Ann. 1057; Decuir v. Benker, 33 La. Ann. 320.) A man is not the head of a family who has adopted a nephew, the nephew's parents being able to support him. (Lancaster Nat. Bank v.Slavin, 1 Ky. Law Rep. 315, 10 Ky. Op. 739.) To constitute one the "head of a family so as to be entitled to a homestead exemption, there must be others than himself, who with him form the family and are legally dependent upon him, and whom he is legally obliged to care for." (Union Trust Co. v. Cox,
The specifications of error question the correctness of the court's holding that plaintiff's declaration of homestead was invalid, and the finding that she was not the head of a family.
Section 6969, Revised Codes of 1921, as amended by Chapter 86, Laws of 1925, so far as applicable to this action, is as follows: "The phrase `head of a family' as used in this Chapter, includes within its meaning: * * * Every person who has residing on the premises with him or her, and under his or her care and maintenance, either: * * * Second. A minor grandchild."
The sufficiency of the declaration is questioned in but one particular, namely, that it does not show the plaintiff to be the head of a family, as defined by section 6969 as amended.
Section 6971 provides: "The declaration of homestead must contain: 1. A statement, showing that the person making it is the head of a family; or, when the declaration is made by the wife, showing that her husband has not made such declaration, and that she therefore makes the declaration for their joint benefit." (Italics ours.)
Plaintiff's declaration of homestead recites: "Know all men by these presents that the undersigned Anna Esterly, for the purpose of making a declaration of Homestead under the laws of the State of Montana hereby makes the following statements: That she is the head of a family, to-wit, the widow of Steve Esterly, deceased; that she has living with her on the premises hereinafter described and dependent on her for support one daughter, and one grandchild, who are unable to support themselves: That she is residing on the premises *69 hereinafter described with said daughter and grandchild, and claims said premises as her homestead."
Prior to the adoption of the Codes no declaration of homestead was required. (Comp. Stats. 1887, First Div., secs. 322-330, incl.) The provisions of our Code, with the exception of one section which has no bearing here, were all adopted from the California Code. (Yerrick v. Higgins,
Section 1263 was construed by the supreme court of California in 1885. "Objection was made that the declaration did not contain a sufficient statement of facts showing the declarant to be the head of a family, and that is the question argued on the appeal. A statement of such facts was not required by the law under which the declaration was executed. It was required by section 1263 of the Civil Code, before the section was amended in the year 1874. By the original section it was provided: `The declaration of homestead must contain a statement of the facts that show the person making it to be the head of a family.' But in that particular the section was amended in 1874 so as to read as follows: `The declaration of homestead must contain a statement showing that the person making it is the head of a family.' From the phraseology of the amendment it is manifest that the legislature intended to dispense with `a statement of the facts' in a declaration, from which the ultimate fact might be judicially inferred, and to require instead a simple statement or recital of the ultimate fact. Under the law as amended, the homestead in this case was selected, and the declaration, `I am the head of a family,' is the statement of a fact, and that fact, in connection with the other facts, which are admitted to be sufficiently stated, shows that the declarant was, at the time of making the declaration, qualified, according to the homestead law, to make the selection of the homestead, and that the land selected possessed the statutory qualities for that purpose." (Jones v. Waddy,
If the construction of section 6971 by the supreme court of California, prior to its adoption by our legislative assembly, is to be followed, plaintiff's declaration is valid. All that follows the statement that she is the head of a family may be considered surplusage.
The rule that the construction of a borrowed statute by the[1] highest court of the parent state, prior to its enactment here, will be followed by this court is of long standing. It has been applied in the following cases: Territory v. Stears,
The rule has its exceptions recognized in many of the cases where it has been applied. It has not been followed in these:Stackpole v. Hallahan,
From a consideration of the decisions cited we conclude that the rule will be followed by this court except when the decision of the court of the parent state does not appeal to us as founded on right reasoning, or conflicts with prior holdings of this court, or is not in harmony with the spirit of our institutions, or when to follow it would lead to the denial of a constitutional right. The construction placed upon section 6971 by the California court will be followed and plaintiff's declaration held valid.
We are inclined to so construe section 6971, regardless of the[2-4] prior construction by the California court. Exemption statutes have a humanitarian purpose, and their provisions must be liberally construed. (Const., Art. XIX, sec. 4; Wall v.Duggan,
The undisputed evidence shows that at the time the declaration[5] was recorded, the family residing on the premises consisted of Mrs. Esterly, her divorced daughter, and the latter's child three and one-half years old. The daughter and grandchild had lived with the plaintiff since the child was eleven days old. The daughter and her child had been abandoned by the husband and father at least since the previous year. The daughter and grandchild were supported in a large part by the plaintiff. The daughter worked off and on, and, when she worked, the child was cared for by the plaintiff. The evidence clearly shows that, at the time plaintiff recorded her declaration, she had residing on the premises with her, and under her care and maintenance, a minor grandchild, as provided by subdivision 3 of section 6969, as amended. The court erred in finding the grandchild was not under the care of plaintiff.
The judgment is reversed and the cause is remanded to the district court of Silver Bow county, with direction to enter judgment for plaintiff.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS, FORD and ANGSTMAN concur.
Rehearing denied March 14, 1930. *73