92 Neb. 373 | Neb. | 1912
Tlie statement of facts found in tbe first paragraph of the former opinion (90 Neb. 573), so far as it goes-, is correct and will not be repeated. It may be well to state, however, that at the time that Kinzel bought the property he was fully informed of the fact that Mrs. Browand was insane and under guardianship. It is also shown that Browand at first was offered $4,200 for the land, presumably with a marketable title, and that upon all the facts being disclosed, and after further negotiation, the pur
It is'said in the former opinion: “The evidence is insufficient to show that at the time Mrs. Browand left Nebraska she was insane, or that her mind was so unsound or unbalanced tliat she was not competent to understand the nature and import of what she was doing; but it is sufficient to show that she voluntarily left her husband and abandoned her home and any right of homestead that she may have had in the lands in suit, with no intention of ever returning or of ever again asserting those rights.”
Upon a careful rereading of the entiré testimony, we are convinced that the first proposition quoted is sound and reflects the evidence, but the further conclusion that the evidence is sufficient to show a voluntary abandonment of her husband and her homestead rights we think is erroneous.
All presumptions should be in favor of the homestead, and, when it is sought to show an abandonment, the burden of proof should rest upon the one who attacks the homestead interest. Union Stock Yards Nat. Bank v. Smout,
Mrs. Browand owned in fee simple the west 80 acres of the quarter section, of which only 15 acres were cultivated. There were 45 acres in cultivation upon the 80 acres in dispute. The farm was operated as a whole and rented as a whole. Under these facts, the majority of the court are of tiie opinion that, regardless of value, the whole 160 acres constituted the homestead, following Meisner v. Hill, p. 435, post. This being so, under the rule announced in Weatherington v. Smith, 77 Neb. 363, the homestead right of Mrs. Browand was unimpaired by the removal of her husband Avhile she Avas insane, and the deed was void in laAv. Adopting this construction, what are Mrs BroAvand’s rights? Browand died without issue, but Avith brothers and sisters surviving. Section 1, ch. 23, Comp. St. 1907, provides: “When any person shall die, leaving a husband or Avife surviving, all the real estate of which the deceased was seized of an estate of inheritance at any time during the marriage, * * * which has not been lawfully conveyed by the husband and wife while a resident of this state, or by the deceased while the husband or wife was a nonresident of this state * * * shall descend, subject to his or her debts and the rights of homestead, in the manner following: * * * Fourth. One-half to the husband or Avife if there be no child, nor the issue of any deceased child, or children, surviving. Fifth. If the deceased leave relatives of his or her blood, the residue of the real estate of which he or ¿lie shall die seized, in the cases above named, when not lawfully devised, shall descend subject to the rights of homestead, in the same manner and to the same persons as hereinafter provided for the descent of real estate of deceased persons leaving no husband or Avife surviving.” Mrs. Browand by virtue of her homestead right succeeded to a life estate in the premises upon her
Broivand, being the fee title holder and the head of the family, was entitled to the rents and profits until 1909 when he made the conveyance. If the conveyance was void, he was entitled to them until the time of his death in 1908. Tli ere being no proof that he failed to support his wife, she could make no claim to them as against him. This being the case, Mrs. Browand did not become entitled to the rents and profits until after Browand’s death, and she takes the land subject to the duties imposed by law upon tenants for life.
The evidence shows that Mrs. Browand’s guardian filed a claim against the estate of Browand for the money derived from the sale of the land, but it is not shown whether the claim was allowed. What bearing upon the rights of the parties to this suit the collection of this money from his ward’s estate would have is not before us, and we express no opinion on this point. Since a considerable interval of time has elapsed since the trial, any further relevant and material facts in this connection may be brought out at another hearing. Having settled, as far as we may with the evidence before us, the legal relations of the parties, the cause is reversed and remanded to the district court for further proceedings.
Reversed.