Roberts v. Greer

By the Court, Bigelow, C. J.: The question for decision in this case is whether upon the death of the wife the homestead of the parties upon community property remains in the hands of the childless husband as a homestead, and as such exempt from levy and sale foj' his debts. The answer depends upon the construction of our homestead law. The first section of the act, as amended in 1879 (Stats. 1879, p. 140; Gen. Stats., sec. 539), provides that the husband and wife, or either of them, or other head of a family, may make and file a declaration of homestead, and that thereafter “ the husband and wife shall be deemed to hold said homestead as joint tenants; provided, that if the property declared upon as a homestead be the separate property of either spouse, both must join in the execution and acknowledgment of the declaration; and if such property shall retain its character of separate property until the death of one or the other of such spouses, then and in that event the homestead right' shall cease - in and upon such property, and the same belong to the party (or his or her heirs) to whom it belonged when filed upon as a homstead. Section 4 of the act (Stats. 1879, p. 141; Gen. Stats., sec. 542) provides as follows: “The homestead and all other property exempt by law from sale under execution, shall, upon the death of either spouse, be set apart by the court as the sole property of the surviving spouse, for his or her benefit, and that of his or her legitimate child or children; and in the event of there being no surviving spouse, or legitimate child or children of either, then the property shall be *328 subject to administration, and to the payment of his or her debts or liabilities; provided, that tlie exemption made by this act and the act of which it is amendatory shall not extend to unmarried persons except when they have the care and maintenance of minor brothers or sisters, or both, or of a brother’s or sister’s minor children, or of a father or mother, or of grandparents, or unmarried sisters living in the house with them; and in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted; and upon the death of such unmarried person the property shall descend to his or her heirs, as in other cases, unless disposed of by will, subject to administration and the payment of debts and liabilities.” . It may be admitted that the statute is by no means clear upon the point involved in this action. Generally it is very crude, and many of its provisions conflicting to the last degree. Through this maze the courts must thread their way as best they may, and in endeavoring to carry out what appears to be the spirit of the law their decisions must necessarily, sometimes, seem- to fall but little short of judicial legislation. The, language used by the supreme court of Texas is very applicable to the situation here. It said: “ The homestead estate was one unknown to the common law, and is of very recent origin, having been created by statute and under the construction given by the courts. As might have been reasonably expected in the legislation upon a'new subject matter, the statutes did not in express terms anticipate and provide for every possible phase of the question, and the courts have been called upon to construe and apply the law to new cases as they would arise. This construction has almost invariably been a liberal one, and designed to carry out the beneficent purposes and intention of the legislature. This court has repeatedly called attention to the necessity of more specific legislation on the subject, and in the absence of it has been forced to decide cases not so much from the letter of the law as from its evident spirit and intention. These decisions have not been made in a spirit of judicial legislation, but in an anxious desire and effort, by analogy and otherwise, to arrive at a proper construction of the constitution and laws.” (Blum v. Gaines, 57 Tex. 119, 121.) Viewing the law in the liberal spirit *329 here indicated, it seems to us there is more reason for concluding the legislature intended the homestead in the hands of the surviving husband to be exempt from execution than the contrary. The constitution (sec. 30, art. IV.) provides that “a homestead, as provided by law, shall be exempt from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife when that relation exists.” Under this provision the conditions upon which a homestead shall be granted have been left entirely to the legislature. While that body has seen fit to limit the right to initiate a homestead to married persons, and to those who are heads of familes, there seems nothing to prevent its being extended to others who are not in either situation. If it could do this, it could extend it to some classes and not to others. It could provide that a homestead once created should continue under some circumstances, and not under others. The first section of the act quoted above provides that “ the husband and wife shall be deemed to hold said homestead as joint tenants.” As used in this statute, the word “homestead ” may be defined as meaning not only the property— the real estate — occupied as the home, but also the right to have it exempted from levy and forced sale. In case of -a husband and wife, the homestead is a home that cannot be taken from the occupiers for the debts of either or both of the spouses. It is this “homestead ” that they are to hold as joint tenants. One of the fundamental incidents of a joint tenancy is the right of survivorship. If, then, when the legislature provided that they should hold the homestead as joint tenants, if they'understood at all the meaning of the language used, as we must presume thejr did, they must have meant that the survivor should not only succeed to the property which constituted the-homestead, but also to the right to hold it exempt from forced sale. If not, they would not hold the “homestead” as joint tenants, but merely the property covered by the homestead right. It will be noticed, further, that the same section also provides that where the property declared upon as a homestead is the separate property of either spouse, and shall remain such until the death of one of the parties, the “ homestead right ” *330 ,in such property shall thereupon cease. From this, upon the principle that what is enumerated excludes what is not, it seems quite clear that the legislature must have intended that in case of community property this “ homestead right ” should not cease upon the death of one of them. In section 4 it is again the “ homestead ” that upon the death of either spouse is to be set apart as the sole property of the survivor, and it is further provided that, in case there is no surviving spouse nor children, the “property” is to become subject to administration. This shows that the attention of the legislature must have been particularly called to the fact that there was a distinction between the homestead and the property upon which the homestead right rested, and that they did not use those terms indiscriminately. In Tyrrell v. Baldwin, 78 Cal. 470, 476, speaking of a provision of the code, the court said: “That section provides that ‘ the court may (shall) of its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead selected, designated and recorded,’ etc. Here the quality of the exemption is clearly impressed upon the homestead set aside. It would -not be a homestead, it would be wanting in the main feature which recommends it to favor, if, upon the death of the head of the family, it were no longer protected by the law of exemption. There is greater necessity for such protection after the death of one of the spouses than before.” An argument leading to the same result may also be drawn from the provision that, where there is no surviving spouse nor children, the property shall become subject to administration and distribution to the heirs. Unless in this provision the legislature intended to provide for a case where both husband and wife died at 'the same instant, which is hardly supposable, it must have contemplated that there would be a time during which the homestead would continue to exist, when but one of them would be alive, and it is only after the death of the survivor that the homestead property is to be distributed to the heirs. In Smith v. Shrieves, 13 Nev. 303, this court decided that, upon the death of one of the spouses, the children took no interest in the homestead. *331 If that decision is correct, then the fact that there are or are not children cannot alter the estate that comes to the surr viving husband or wife. If it would not, then no case can be thought of where the homestead would continue after the death of one of the spouses, if it would not here. Defendants’ counsel, admitting what is really beyond controversy, that upon the death 'of the wife the title to the homestead property vested absolutely in the husband, found their argument that it is not thereafter exempt from levy and sale for his debts principally upon the language of the first proviso of section 4, where it directs that “ in all such cases the exemption shall cease upon the cessation of the terms upon which it is granted.” But the view we take of this provision is that it really strengthens the opposite position. We are of the- opinion that this proviso is simply a limita-, tion upon the first section, wherein that section provides for a homestead for an unmarried person who is the head of a family. Without this limitation the first section might be construed to apply to cases wher’e an unmarried person had living with him others who were not relatives. This was carefully guarded against — so carefully, in fact, that it seems to even prevent a surviving husband or wife with dependent children from ever securing a homestead in their own right after the death of the other; and then the clause in question was inserted for the purpose of providing for the termination of the unmarried persons’ homestead when they no longer have dependent relatives living with them. This, we think, is all that was intended by this clause, and the care of the legislature to provide for the termination of such a homestead may be considered an indication that they did not intend one granted to a married person to terminate upon the cessation of the terms upon wdiich it was granted. We are aware that in Estate of Walley, 11 Nev. 260, 266, the majority of the court expressed the opinion that the construction of this statute contended for by defendants’ counsel was correct, but the point was not involved in that case, and, of course, was not decided. What was there said was stated only by way of argument as to the proper construction to be placed upon another statute, and probably did not receive the consideration usually given to points actually decided. Since then, in Smith v. Shrieves, supra, the court *332 has held that children take no interest in a homestead; and if as heretofore remarked, this was ■ correctly decided, then the existence or non-existence of children cuts no figure in the right to a homestead, and, if a childless widow or widower cannot have one, then such a person with children cannot do so. But certainly the legislature cannot have deliberately intended to exclude a widow, or a widower, with children, from all benefit of the homestead act, and yet, as we have seen, if they are not granted a homestead by virtue of their survivorship, they cannot afterwards secure one. We think that stronger arguments against the view we have taken may be drawn from the general policy of the homestead act, Avhich seems to aim only at securing a homestead for a family, and not for individuals, from the fact mentioned by Justice Beatty in his dissenting opinion in Smith v. Shrieves, supra, that, when our legislature adopted our law of 1865, they apparently preferred to follow the California act of 1860, which., at best, is not clear upon this point, in preference to the California amendment of 1862, which is clear and definite that the homestead in the hands of the surviving spouse is exempt from all debts incurred prior to •the death of the other; from the fact that the legislature clearly did not intend that a homestead in the separate property of either of the spouses should continue after the death of one, and consequently, as community property virtually becomes separate property after such death, no greater reason exists for granting a homestead in that than exists in regard to property which has always been separate; from the fact that no provision has been made for abandoning such a homestead, and under the provisions of section 2, taken literally, if a homestead exists at all to a surviving husband or wife, it never can be abandoned, and, as this cannot have been intended, the legislature must have intended that no such homestead should exist at all. But strong as some of these reasons, and perhaps others that could be suggested, are, we consider those on the other side stronger still, and consequently hold that view to be the law. While not strictly in point, yet as to some extent supporting the views here expressed, and showing that other courts *333 upon statutes more or less like our own have come to the same conclusion, we cite Town v. Rumsey, 35 Pac. 1025; Ellis v. Davis, 90 Ky. 183; Keyes v. Cyrus, 100 Cal. 322; Silloway v. Brown, 12 Allen, 34; Kimbrel v. Willis, 97 Ill. 494; Blum v. Gaines, 57 Tex. 110; Wap. Homest. 82, et seq. The judgment is affirmed.