107 P. 471 | Or. | 1910
Lead Opinion
delivered the opinion of the court.
“The county court has the exclusive jurisdiction, in the first instance, pertaining to a court of probate; that is — (1) to take proof of wills; (2) to grant and revoke letters testamentary of administration and of guardianship.”
Whenever a will is probated in common form, as was done in this case, it may thereafter be contested in that court by a direct proceeding for that purpose. And the decree of the county court is conclusive until vacated by appeal or impeached by a direct proceeding: Jones v. Dove, 6 Or. 188; Hubbard v. Hubbard, 7 Or. 42; Brown v. Brown, 7 Or. 285; Clark v. Ellis, 9 Or. 128. In 1893 the legislature made provision that “when a will has been admitted to probate any person interested may, at any time within one year, after such probate, contest the same or the validity of such will; * * and all proceedings for such contests or for probating wills must be begun within the time herein specified.” Section 1108, B. & C. Comp. Hence the decree of the county court is conclusive in this case upon the validity of the will.
“(2) For the recovery of the party in fault and not allowed the care and custody of such children, such amount of money in gross or in installments, as may be just and proper for such party to contribute toward the nurture and educátion thereof.”
This statute contemplates that the provision shall be such as will provide for the children according to their station in life as long as they may need it, if defendant is of sufficient financial ability to do so, and the effect of such an order as was made in this case does not necessarily terminate with the death of the defendant, but may be enforced against his estate. It is so held in Miller v. Miller, 64 Me. 484, and in Creyts v. Creyts, 143 Mich. 375 (106 N. W. 1111: 114 Am. St. Rep. 656). In the latter case it is held:
“In the absence of a statute the court could do no more than to enforce the decree * * by proceedings to which the representative should be made a party if it could do anything in the premises; it being suggested that in that case the wife would be on the same footing with any other claimant, and be obliged to obtain and be satisfied with allowance and payment through the probate court.”
This is a suit for partition, and it is alleged and seems to be conceded, that the land cannot be divided equitably. The court is asked to direct a sale thereof for the purpose of partition, which will be granted. And it is adjudged that Hattie E. Mansfield, J. L. Hill, and Addie M. Thompson are each the owner of an undivided one-third of the land, subject to the lien of said mortgage and the interest of Áddie M. Thompson is subject to the payments herein provided for and to the payment of the debts and expenses of the estate of Claude H. Mansfield, deceased.
It is therefore adjudged and decreed that said land be sold in the manner provided by law for the purpose of partition; that the proceeds of such sale be disbursed as follows: First, to the satisfaction of the mortgage debt, due Frank Reiner, of the sum of $340.85, with interest thereon from October 24, 1904, at 6 per cent per annum, total $449.92; second, to the costs to both plaintiffs and defendants in this and in the circuit court; third, that one-third' of the remainder be paid to defendant J. L. Hill, and one-third to Hattie E. Mansfield; fourth, to the payment of the monthly allowance for the maintenance and education of. the children, $15 per month from May 23, 1905, to this, time, being 57 months, and equaling $855, with interest thereon at the rate of 6 per cent per annum, which is $121.80, total, $976.80; and, fifth, that there be paid to Hattie E. Mansfield the said $50 attorney’s fees and $419.85 costs, with interest thereon from the 23d day of September, 1905, at 6 per cent per annum, total, $594, and the remainder of said purchase price, if any, be paid over to J. L. Hill as executor of the will of Claude H. Mansfield, subject to administration o± said estate, and that the cause be remanded to the lower court for the purpose of carrying out the provisions of this degree. Modified : Remanded.
Rehearing
ON PETITION FOR REHEARING.
[108 Pac. 1007.]
delivered the opinion of the court.
It is urged that the term “homestead” is a designation of a particular estate, implying some prohibitions and limitations not incident to ordinary titles. But the term only means “the home place,” or “the house and adjoining grounds where the head of the family dwells,” and the text-writers, quoted by counsel, in discussing the homestead and its incidents, do so only with reference to the conditions and limitations placed upon it by statute. Every homestead law of other states, cited by counsel, contains provisions prohibiting alienation, incumbrance, and devise. The decisions are based on these limitations, and, if they were found in our statute, they would be in point.
It is, therefore, adjudged that the said land is subject to the lien of Frank Reiner’s mortgage; that, subject thereto, J. L. Hill is the owner of an undivided one-third of said real property; that Hattie Mansfield.is the owner of one-third thereof; that the will of Claude M. Mansfield is valid and devises to Mrs. Addie M. Thompson an undivided one-third of said land subject to the lien of said