In Re Carothers' Estate

OSBORN, J. This is an appeal by Daisy Carothers, Maud Morris, Ruby Morris, May Morris, and Nona Roberts, hereinafter designated ■ appellants, from a judgment of the district court of Greer county, affirming a decree of distribution by the county court of Greer county in the estate of Joseph W. Car-others, deceased, which decree upheld the will of Joseph W. Carothers and vested title to 2/3rds of his estate, after the payment of certain bequests, in George B. Carothers. George B. Car-others and Tillman Terry, executors of the last will and testament of Joseph W. Carothers, and George B. Carothers,. individually, are appellees. The facts are undisputed. On gust 12, 1939, Joseph W. Carothers made a will devising to his wife, Daisy others, all of the rents, revenues, and income from all property owned by him at the time of his death, giving to his daughters, May Morris, Maud Morris, Ruby Morris, and Nona Roberts, and to his two granddaughters, Ethel Caroth-1 *641 ers and Pearl Carothers, the sum of $100 each, and devising to his son, George B. Carothers, the remainder of his estate, subject to the restriction that George B. Carothers should not sell, mortgage, or otherwise dispose of any real estate left by the testator for a period of 20 years following the testator’s death. Joseph W. Carothers died on November 25, 1941. At the time of his death he and his wife, Daisy Carothers, resided upon the northeast quarter of section 29, township 7 north, range 21 west in Greer county, which was his homestead. Upon his death the homestead was sét apart to his widow, Daisy Carothers. The widow and Maud Morris, one of the daughters of Joseph W. Carothers, deceased, filed a contest of the will, but the will was admitted to probate over their protest, and thereafter Daisy Carothers elected to take under the law. Final account and petition for distribution was filed by the executors, and appellants filed a petition for distribution under the laws of succession, which latter petition was by the court denied, and the property was distributed l/3rd to the widow and 2/3rds under the will to George B. Car-others. This decree was affirmed by the district court on appeal. The distribution of 2/3rds of the homestead to George B. Carothers was by the county court expressly made subject to the rights of Daisy Carothers, as the surviving wife of Joseph W. Carothers, de^ ceased. The sole question presented is whether the will of Joseph W. Carothers, deceased, is absolutely void as to the above described lands and of no force and effect by reason of the provisions of 84 O. S. 1941, § 44. That section reads as follows: “Every estate in property may be disposed of by will; provided, however, that a will shall be subservient to any antenuptial marriage contract in writing; but no spouse shall bequeath or devise away from the other so much of the estate of the testator that the other spouse would receive less in value than would be obtained through succession by law; provided, however, that of the property not acquired by joint industry during coverture the testator be not required to devise or bequeath more than one half thereof in value to the surviving spouse; provided further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.” Appellants urge that under this statute Joseph W. Carothers, deceased, could not lawfully devise his homestead to any person except his widow, Daisy Carothers; that therefore the will was a nullity, and that the county court should have distributed the property under the laws of intestate succession to the legal heirs of Joseph W. Caroth-ers, deceased, without regard to the provisions of thé will. They contend, in effect, that by the last proviso in the statute, supra, with the exception thereto annexed, the Legislature intended to and did absolutely prohibit the devise of the homestead by the spouse holding title thereto to any person except to the surviving spouse. We think this contention erroneous, and that the judgment of the district court affirming the judgment of the county court was correct. The amended section above quoted was originally adopted from the Compiled Laws of Dakota of 1887, being section 3308 thereof. As originally adopted it read as follows: “Every estate in real or personal property to which heirs, husband, widow, or next, of kin might succeed may be disposed of by will.” In 1909 it was amended to read as follows: “Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will; Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of hi? *642 property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband; Provided, further, that no person who is prevented by law from alienating, conveying or encumbering real property while living shall be allowed to bequeath same by will.” Section 8341, R. L. 1910. In 1925 it was again amended and appears in the 1931 Statutes as section 1539. As so amended, the last proviso, which is the part material to the controversy in the instant case, was changed to read as follows: “. . . Provided, further, that no person shall by will dispose of property which could not be by the testator alienated, encumbered or conveyed while living, except that the homestead may be devised by one spouse to the other.” It was enacted in its present form, as first above quoted, in 1941, and as so enacted was in force and effect at the time of the death of J. W. Caroth-ers. Thus it appears that the last proviso of said section in substance existed in the statute and has been a part thereof since 1909, the words “except that the homestead may be devised by one spouse to the other” being added in 1925. This court has in numerous cases, involving varying sets of fact, discussed the nature of the homestead as created by our Constitution and statutes. We have held in a number of cases that the homestead, as it exists in this state, is a creature of the Constitution and statutes, nothing like it being known at common law. Pettis v. Johnston, 78 Okla. 277, 190 P. 681; In re Musselman’s Estate, 167 Okla. 560, 31 P. 2d 142; Hembree v. Magnolia Petroleum Co., 176 Okla. 524, 56 P. 2d 851; Karbs v. Bouse, 195 Okla. 23, 154 P. 2d 968. We have further held that the constitutional and statutory provisions were enacted for the purpose of protecting the entire family. Brooks v. Butler, 184 Okla. 414, 87 P. 2d 1092; Pettis v. Johnston, supra. The constitutionál provisions are set forth in article 12, secs. 1, 2, and 3, of the Constitution, and are designed to protect the family while both husband and wife are living, regardless of which one of them is vested with title to the land occupied as the homestead. Article 12, sec. 1, defines the property of which the homestead may consist. Section 2 provides: “The homestead of the family shall be, and is hereby protected from forced sale for the payment of debts, except for the purchase money therefor or a part of such purchase money, the taxes due thereon, or for work and material used in constructing improvements thereon; nor shall the owner, if married, sell the homestead without the consent of his or her spouse, given in such manner as may be prescribed by law; Provided, nothing in this article shall prohibit any person from mortgaging his homestead, the spouse, if any, joining therein; nor prevent the sale thereof on foreclosure to satisfy any such mortgage.” 16 O. S. 1941 § 4 provides that no deed, mortgage, or contract relating to the homestead exempt by law, except a lease for a period not exceeding one year, shall be valid unless in writing and subscribed by both husband and wife, where both are living and not divorced or legally separated. 16 O. S. 1941 § 6 permits the husband or wife, where the other spouse has voluntarily abandoned him or her for a period of one year, or takes up a residence in another state, to convey, mortgage, or make contracts relating to the homestead without joinder of the absent spouse. 16 O. S. 1941 §§ 7, 8, 9, and 10 permit the husband or wife of an insane spouse to sell, convey, or mortgage the homestead. Under these constitutional and statutory provisions we have held that any attempted conveyance or mortgage of the homestead by one spouse, where the other is not insane and has not deserted the other spouse for a period of a year, or taken up a residence in another state, is absolutely void and conveys no interest in the homestead. Fetterman *643 v. Franklin, 88 Okla. 1, 211 P. 403; Baker v. Grayson, 86 Okla. 159, 207 P. 301; Barnett v. Sanders, 121 Okla. 14, 247 P. 55; Bishoff v. Myers, 101 Okla. 36, 223 P. 165; Standard Savings & Loan Ass’n v. Acton, 178 Okla. 400, 63 P. 2d 15; Montgomery v. Wise, 179 Okla. 247, 62 P. 2d 647. In Wilson v. Clark, 97 Okla. 299, 223 P. 668; Thomas v. James, 84 Okla. 91, 202 P. 499, and Hawkins v. Corbit, 83 Okla. 275, 201 P. 649, we held that both husband and wife must join in the same instrument, and that an attempted conveyance by separate and distinct deeds, one executed by the husband and the other by the wife, was insufficient to convey any right in the homestead. The above cases and numerous others indicate that this court has at all times been zealous to enforce the constitutional provisions and the statutes in order to safeguard the family in its occupancy of the homestead. They all have reference to the constitutional homestead as distinguished from the statutory or probate homestead. The constitutional homestead is the land itself which is occupied by the family as a home. In re Gardner’s Estate, 122 Okla. 26, 250 P. 490; Finerty v. First Natl. Bank, 92 Okla. 102, 218 P. 859. The statutory or probate homestead is distinguished from the constitutional homestead. As said in Re Gardner’s Estate, supra: “Thus it is clear that the right to possess and occupy the homestead is a special individual right given to a surviving husband or wife, and is separate and distinct from the exemption right given to the head of a family as a protection against creditors. The policy of thus protecting this individual right to a survivor is one of long standing, and has been recognized and consistently upheld by this court.” (Citing cases.) In Ringer v. Byrne, 183 Okla. 46, 80 P. 2d 212, we called attention to the distinction between the constitutional homestead and the probate homestead. The probate homestead originates by force of statute, 58 O. S. 1941 § 311. It requires no order of the probate court to bring it into being or to give it effect. Kimberlin v. Anthony, 124 Okla. 170, 254 P. 1; Belt v. Bush, 74 Okla. 94, 176 P. 935; Moore v. Rick, 186 Okla. 351, 97 P. 2d 884; Ringer v. Byrne, supra. Occupancy by the surviving spouse and family or by the surviving spouse alone, if there are no children, is the only requirement. Ringer v. Byrne, supra; Hembree v. Magnolia Petroleum Co., supra. As stated in the latter case, it is a distinct interest from title. The right to occupy is given by the statute and requires no order of court to vitalize it and give it effect. It may be lost only by abandonment, and upon the death of the surviving spouse, if she still occupies the same, the minor children have the right to continue to use and occupy the same until they reach majority. In Ringer v. Byrne, supra, we held that where the probate homestead attached and the surviving spouse thereafter died, the title to the land vested in her adult son, free and clear of any liability for the debts of the husband. This was also the holding in First Natl. Bank v. Scott, 178 Okla. 175, 62 P. 2d 511. In Shawnee Natl. Bank v. Van Zant, 84 Okla. 107, 202 P. 285, and in Hogan v. Reiker, 86 Okla. 55, 206 P. 203, we held that the probate homestead, occupied by the widow and minor children, was not affected by the execution of a mortgage on the individual interest of the widow in the land, and that such mortgage could be foreclosed, but not so as to disturb the occupancy of the homestead by the minors during their minority. In Re Cole’s Estate, 85 Okla. 69, 205 P. 172, we said: “The right of the surviving spouse to continue to possess and occupy the homestead is an individual right and not an interest in the testator’s property. This right is not subject to testamentary disposition, and does not pass under the decedent’s will. Neither is the surviving spouse deprived of this right by virtue of an antenuptial con *644 tract which provides that the property of each shall remain their separate property and that the other shall not have any interest therein.” In Scott v. Scott, 131 Okla. 144, 268 P. 245, we said: “In addition to this one-third interest, she had the right to use and occupy the homestead during her lifetime. Section 1224, C.O.S. 1921. This right was hers individually and not an interest in the testator’s property, and, therefore, not subject to testamentary disposition. Bacus v. Burns, 48 Okla. 285, 149 P. 1115; In re Cole’s Estate, 85 Okla. 69, 205 P. 172; Pennington v. Woodner-McGaugh, 54 Okla. 110, 153 P. 875. . . .” In Belt v. Bush, supra, and in Re Gardner’s Estate, supra, we held that where the probate homestead had once attached, the sale of reversionary interests by the heirs did not affect the right of the surviving spouse to continue to occupy the homestead. From the above cases it plainly appears that once the probate homestead has attached by the continued occupancy of the constitutional homestead by the surviving spouse, whether with or without minor children, it cannot be taken from such spouse, or upon the death of such spouse, from the minor children, if any there are, except for the obligations specified in article 12, section 2 of the Constitution. It may be lost only by abandonment. Mathews v. Sniggs, 75 Okla. 108, 182 P. 703; Lusk v. Carter Oil Co., 172 Okla. 508, 53 P. 2d 656; Hembree v. Magnolia Petroleum Co., supra. In Bacus v. Burns, supra; In re Cole’s Estate, supra; Hogan v. Reiker, supra; and Roberson v. Hurst, 80 Okla. 115, 190 P. 402, all decided prior to 1925, we held that the owner of the homestead could, under the then existing law (sec. 8341, R. L. 1910), dispose of the homestead by will, subject to the use and occupancy thereof by the surviving spouse and minor children, if any. In Bacus v. Burns, supra, the will devised 4/10ths of the estate to four named children of the testator, 6/10ths of the estate to the widow for life, with remainder to six other children of the testator. The will was made in Kansas and the wife consented in writing thereto. We held that'the written consent was merely an election by the widow to take under the terms of the will, but that the homestead could not be sold to carry out the provisions of the will so long as the same was used and occupied by the surviving widow as a homestead, unless it was sold subject to her right to so use and occupy. In Re Cole’s Estate, supra, the husband and wife by antenuptial agreement agreed that neither should have any interest in the separate property of the other. The homestead was the separate property of the wife. The wife died first and by will left l/3rd of her property to her husband for life, with remainder to her brothers and sisters, and devised the remaining 2/3rds of her estate to certain nephews and nieces. The court upheld the ante-nuptial agreement and the will insofar as it failed to give the husband l/3rd of the property absolutely, but said: “Neither the antenuptial contract nor the will deprived the surviving spouse of the right to continue to possess and occupy the homestead as his home. The effect of section 6328, supra (58 O. S. 1941, § 311) is, not that it makes the will void, but it postpones to a subsequent time the right of the devisee under the will to possess and occupy the homestead. . . In Hogan v. Reiker, supra, the will devised Vz of the testator’s property to his wife and the other Vz to his three children, but provided that the homestead be held intact and not divided or sold or conveyed until after the youngest child reached majority. The widow remarried and thereafter, joined by her second husband, made a mortgage upon her Vz interest in the property. In an action brought to foreclose the mortgage we held that the mortgage was *645 valid as to the % interest devised to the wife, but that it could not be foreclosed and her Y2 interest in the property sold until after the youngest child became 21 years of age. In Roberson v. Hurst, supra, the husband devised his real estate to his wife and her three minor children and provided further that the wife should have full control and management of the estate and full power to sell any part thereof if she considered such action to be for the best interest of herself and her minor children. The widow thereafter mortgaged the property and an action was brought to foreclose the mortgage. We held that the effect of the will giving the widow the right to have full control of the property and sell any part of the same if shé deemed best, in effect vested her with an estate in fee, subject to the contingent remainder in the minor children; that therefore she could execute a valid mortgage upon the homestead and that the same could be foreclosed. In that case we said: “. . . It is only the spouse of the •owner of land invested with the homestead character who is required by statute to join in the conveyance thereof in order to make the same valid; in other words, although the land thus impressed, is the homestead of the family, the family is not required to join in a conveyance thereof by the owner.” In Re Gardner’s Estate, supra (decided February 23, 1926), the will disposed of testator’s property to his wife and other devisees and the widow elected to take under the law and asked that certain property used as the family homestead, but upon which was also located a business building, be set apart to her as her homestead. Two daughters of the testator by a former wife contested the application for the reason that the business building on the lot was not properly a part of the homestead. We held that the whole property constituted the homestead, and that upon the death of the testator the widow was entitled to> occupy it regardless of the claims of other heirs or devisees. In Barnett v. Love, 118 Okla. 31, 248 P. 645 (decided January 19, 1926), the homestead was part of the allotment of the wife. She died leaving a will by which she devised her property to her husband and two of her children. In that case we quoted 84 O. S. 1941 § 44, as it existed prior to the 1925 amendment, and held that under it Grace' Love, the wife, could devise 2/3rds of her property to her heirs other than her husband, subject to the right of the husband to use and occupy the homestead as long as he maintained his homestead thereon. In Scott v. Scott, 131 Okla. 144, 268 P. 245 (decided June 19, 1928), the husband bequeathed all his property to his three nephews subject to a life estate in favor of his wife. Thereafter he deeded the homestead to his wife. Upon his death his devisees brought an action to cancel the deed and commenced proceedings to probate the will. In an amended petition in the action to cancel the deed, it was pleaded that the widow and the executor of the last will had entered into a contract by which the widow had agreed that the deed might be canceled and that she would take under the will. The widow alleged that this contract was obtained by fraud and that she had never understood its full effect. The trial court canceled the deed and held the contract valid. We held that the testator had the right to devise the homestead, but held that the contract deprived defendant of her homestead interest in the property and of her l/3rd interest in fee simple therein, and set the contract aside. In Gassin v. McJunkin, 173 Okla. 210, 48 P. 2d 320 (decided June 4, 1935), the husband devised all his property to his wife, making no provision for his children and not mentioning them; the property was distributed to the widow, who occupied the homestead until the time of her death, leaving a will by which she devised the homestead to four of the children, leaving a fifth child, Andrew Gassin, the sum of $1. The four children brought suit to quiet *646 their title against Andrew Gassin, if living or dead, and his daughter, Mrs. McJunkin, contested the action, claiming an interest as heir through her father. We held in that case that the owner of the homestead had the right under our statutes to dispose of the same by will, subject to the rights of the surviving spouse and children to use and occupy the same, but that Mrs. McJunkin had an interest in the property because of defects in the probate proceedings. All of the above cases dealt with the statute prior to the 1925 amendment. In Hicks v. Jeffress, 178 Okla. 109, 61 P. 2d 1079, the husband devised to his wife that part of his estate which she would take under the law of succession, and after certain bequests of money to two of his daughters, devised all the residue of his estate to Lena Jeffress. The widow contested distribution under the will, claiming that Vz of the property was hers by virtue of a partnership arrangement between her and her husband, and that by statute she was entitled to the other % as property jointly acquired by the husband wife during coverture. We held that the decree distributing the property under the will was valid, although it did not in terms reserve to the widow the right to occupy and possess the homestead, for the reason that the record showed that she was occupying the homestead and no one contested her right to do so. Our holdings in the above cases may be summed up in the statement that the provisions of our Constitution and statutes relating to the sale, conveyance, or encumbrance of the homestead do not prevent the devise thereof, but any such devise is subject to the homestead rights of the surviving spouse and children. This is in accord with the holding of the Supreme Court of Kansas under similar provisions. Martindale v. Smith, 31 Kan. 270, 1 P. 569; Vining v. Willis, 40 Kan. 609, 20 P. 232; Postlethwaite v. Edson, 102 Kan. 104, 171 P. 769; Hicks v. Sage, 104 Kan. 723, 180 P. 780; Postlethwaite v. Edson, 106 Kan. 354, 187 P. 688; In re Casey’s Estate, 156 Kan. 590, 134 P. 2d 665. In Vining v. Willis, supra, in holding’ that disposal of property by will was-not an “alienation” within the meaning of the constitutional provision that, a homestead “shall not be alienated, without the joint consent of husband and wife, when that relation exists,” the-court said: “. . . A will never divests the owner of his property, or any interest therein. No interest passes by the will to the-intended devisee, — nothing that he can sell or transfer or incumber; nothing’ that will pass from him to heirs, or that he can devise or bequeath, — and the-will may be revoked by the testator immediately after its execution, or at any time afterwards, and before his death. A person might execute a thousand wills for the same property, yet no-one of such wills would transfer anything; but when the testator should die, the devisee mentioned in the last will executed would, under and by virtue of the statutes, take the property. It would not be the will, however, but death, that would take the property from the testator; and it would be death, the statutes, and the will, all operating’ together that would confer the property upon the devisee.” It is to be noted that our constitutional provision uses the word “sell”' instead of “alienate” as in the Kansas statute. The previous holdings of the court embrace the theory that the constitutional homestead was not inalienable by the owner, although in order to-effect a sale of the land it was necessary that the spouse of the owner join in the conveyance. It would seem, therefore, that the construction which-we have given, and which has been relied upon for many years by the bench, the bar, and the people of the state, has-ripened into a well-known rule of property which should not be overthrown, unless the statute compels. The last restrictive proviso of the statute having been construed as not preventing a divise of the homestead, the exception to> the proviso: “Except that the homestead may be devised by one spouse to- *647 the other,” is a grant of power, taking all inalienable land which could not be devised out of the statute and authorizing one spouse to devise to the other spouse any such inalienable land occupied as a constitutional homestead. Should the husband own land in fee simple,, but with a restriction against alienation or encumbrance during his lifetime, under the proviso he would be without power to devise the same, but under the exception to the proviso, if he occupied said lands as the homestead of himself and wife, the statute, by virtue of the exception, gives him express authority to devise said inalienable lands to his wife. While the right to make a will is governed by statute, said right was so anciently granted that statutes restricting the right will be strictly construed. If the Legislature had intended to prevent the devise of the homestead, knowing, as it is presumed to know, the several constructions of our constitutional and statutory provisions approving the making of a will devising the same, it could and would have used clearer and more explicit language to accomplish the restriction of such power. It is clear from what we have heretofore said that upon the death of the spouse in whom title to the homestead is vested, and the coming into existence of the probate homestead, the homestead rights of the surviving spouse are equally unaffected, whether the owner disposes of the land itself by will, or whether, dying without a will, the title thereto vests in his heirs by operation of the laws of succession. In either case, the title of the heirs or devisees is subject to the rights of the surviving spouse and no action on their part can in any wise affect those rights. If, as contended by appellants, the husband is without power to devise the title to his homestead to anyone other than his wife, if living, then we are presented with the absurd situation that in the case of a father with adult and minor children, whose adult children may have long since abandoned the old home and fireside and have sought and found security and financial independence for themselves, but whose minor children are still helpless and still within the security of the home nest — such father is debarred from protecting his helpless babes by devising any portion of the title of the homestead to them. Such an absurdity is the prerogative of the Legislature, but the courts should not countenance it unless such result arises from specific, direct, and unmistakable language. Such unjust consequences should not be arrived at by innuendo or specious reasoning, or by technical rules of construction. The action of the court in permitting the widow to make an election to take under the laws of succession and distributing the remainder of the property under the terms of the will was therefore correct. Affirmed. GIBSON, C.J., and BAYLESS, CORN, DAVISON, and ARNOLD, JJ., concur. HURST, V.C.J., and RILEY and WELCH, JJ., dissent.