8 Utah 203 | Utah | 1892
The facts are stated in the opinion. This case came on for trial before the first district court upon the following agreed statement of facts: “(1) James Knudsen died intestate July 30, 1890. (2) The defendant Julius Hann-berg was duly appointed administrator of the estate of the said deceased, and ever since has been, and now is, administrator of the said estate. (3) That after paying all the debts and 'liabilities of said estate, including costs of administration there is left in the hands- of the administrator, as assets of the said estate, real estate of the value of $3,500, and personal property of the value of $850. (4) That James' Knudsen left, as heirs at law, plaintiff, Ane Knudsen, his widow, in possession of said real estate and personal property in Provo City, county of Utah, Territory qf Utah. (5) That, besides this plaintiff, said deceased left three children by a former marriage, to-wit: James C. Knudsen, aged 20 years, Ida Amelia Knudsen, aged 14 years, and Neis William Knudsen, aged 11 years, who resided apart from him. (6) That on the -day of March, 1891, this plaintiff filed her petition for an order setting aj>art to her a homestead and personal property exempt from execution by law, and for her support until said estate was settled. A copy of said petition is hereunto attached. (7) That on the - day of -, 1891, said probate court allowed $10 per month to the plaintiff, but reserved the question of homestead and exempt property. (8) That on the 16th day of January, 1892, the probate court in and for Utah county refused said petition, and ordered distribution of said estate, without any reference to exemption or homestead right. A copy of said order is hereunto attached. (9) That plaintiff duly appealed from said refusal and from said order of distribution to this court. (10) It is further stipulated as facts that Ane Knudsen, appellant,
The questions presented by this appeal are new-, in this Territory, and our statutes are not sufficiently identical with those found elsewhere to make the adjudication of other courts' of much assistance. In order to present the questions intelligibly, it will be necessary to refer to the several statutes of this Territory in force and bearing upon the question at the,time this contention arose. Section 3429, Oonrp. Laws 1888, exempts certain real and personal property from execution; and subdivision 11 provides that, if the debtor be the head of a family, there shall be a further exemption of a homestead. to be selected by the debtor, consisting of lands, together with appurtenances and improvements thereon, not exceeding in value the sum of $1,000 for the judgment debtor, and a further sum of $500 for his wife, and $250 for each other member of .his family; and it is further provided in what
. In our statute above quoted there is no provision to be found that the widow and minor children or the widow may hold land exceeding in value the homestead limit as a homestead, to the exclusion of children claiming rights therein as heirs at .law. The general purpose of the several statutes upon this subject, as I understand them, .was merely to preserve the homestead for family occupation as against any sale for debts, or any sale by the married owner without his wife’s concurrence, so far as her dower interest might be affected. In cases where the premises are susceptible of partition without sale, and exceed the statutory homestead limit in value, and the estate is solvent, there is no reason why such partition may not be had in the distribution of the estate. Rands v. Brain, 5 Utah, 197, 14 Pac. Rep. 129. I can come to no other conclusion than that, under the statutes of this Territory, the homestead right does not attach in favor of the widow or children, unless the estate is insolvent and in debt, or is below the homestead allowance in value, and, if it is not, it goes to the heirs at once, under the law of succession, subject to the widow’s right of dower. Robinson v. Baker, 47 Mich. 619, 11 N. W. Rep. 410; Patterson v. Patterson, 49 Mich. 176, 13 N. W. Rep. 504; Turner v. Bennett, 70 Ill. 263; Zoellner v. Zoellner, 53 Mich. 620, 19 N. W. Rep. 556; 1
The remaining question to be determined is whether the widow is entitled to dower in the husband's lands, and also to one-third thereof by succession. By law of Congress known as the “Edmunds-Tucker Law," passed March 3, 1887, § 18 provides that “a widow shall be endowed of one-third part of all lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless she shall have lawfully released her right thereto." 1 Comp. Laws, 1888, p. 119. At the time this law of Congress was passed, and for many years prior thereto, the law of succession (title 2, c. 3, § 2741, Comp. Laws, 1888), was in force in this Territory, and Congress could not have been ignorant of its existence. In the case of Cope v. Cope, 137 U. S. 682, 11 Sup. Ct. Rep. 222, the court holds “that annulments of statutes by implication, like repeals by implication, are not favored by courts, and that no statute of a territory will be declared void because it may indirectly, or by construction which is possible but not necessary, be repugnant to an act of Congress annulling legislation of the territory; but such a result must be direct and proximate in order to invalidate the statute.” We can see no reason why the law of Congress and the law of succession passed’ by the Territory are in conflict or repugnant to each other. The act of Congress endows the widow with one-third part of all lands whereof the husband was seized. Consequently the widow should have a dower interest, a life estate, to the extent of one-third of all the real estate whereof the husband died seized; and under the law of succession the widow is entitled to one-third of all the real estate remaining after the dower is set off to her, and also to an undivided one-third of all the personal