Richards v. Inman

WILLIAMS, Vice Chief Justice. Norbert C. Richards, the plaintiff in error, filed a motion in the Estate of Ella E. Richards, deceased, in the County Court of Nowata County, Oklahoma, to set aside certain property to him as a homestead. The motion was denied by the county court and by the district court on appeal, and Richards appeals to this court. The only question presented here is whether or not Norbert C. Richards, the second husband of Ella E. Richards, formerly Inman, deceased, has a homestead right in and to the property involved herein. There is no dispute as to the factual situation involved, which is as follows. John G. Inman died intestate in 1942 seized and possessed of the fee simple title to the pi'operty here involved, which at the time of his death was his homestead. He was survived by his wife, Ella E. Inman and eight children. The estate of John G. In-man, deceased, was duly probated and distributed, an undivided one-third interest therein going to the surviving wife, Ella E. Inman, and an undivided one-twelfth interest therein going to each of said eight children. In the probate of said estate, the property here involved was set aside to Ella E. Inman, the surviving widow, as the homestead. Thereafter Ella E. Inman married Norbert C. Richards, and they lived and resided upon the property here involved from the time of their marriage until the date of death of Ella E. Richards, formerly Inman, which occurred in 1953. Ella E. Richards is survived by her second husband, Norbert 'C. Richards, and her eight children by her first husband, none of whom are minors. Plaintiff in error contends, as his only assignment of error, that the court erred in rendering judgment refusing to set aside the property in question to him as a homestead in view of the factual situation above stated. We have held.to the contrary, however, in In re Musselman’s Estate, 167 Okl. 560, 31 P.2d 142, 143. The facts in that case were identical with those of the case at bar, with the exception that the child of the first marriage was still a minor at the time of the death of his mother, and there were three minor children of the second marriage, whereas in the case at bar none of the children of the first marriage are minors and there are no children of the second marriage. Plaintiff in error contends that the minor child of the' first marriage was the deciding factor in the Mussel-man case and that the absence of such factor in the case at bar requires that the holding here be the other way. We do not agree with such contention, however, In the Musselman case we stated the question involved as follows: “Therefore, the only question is as to whether on the death of Lela M. [820] Musselman, a new homestead was ere-ated for the benefit of the widower, Musselman, and his three minor children.” We answered such question in the negative, and in so doing used the following language : “We have found nothing in the law, as adjudicated by the courts of Oklahoma, that gives to the surviving spouse of a second marriage, as in this case, an additional homestead to that which was created on the death following the first marriage.” We also said: “In other words, when Lela M. Rice, as the surviving widow of her first husband, became vested with her homestead her rights could not be enlarged by her second marriage. It was equally true that after her marriage to Musselman and her death following that, her rights terminated with her death, and consequently any interest in the homestead acquired by the second husband and his children by her'likewise terminated, * * Plaintiff in error cites no cases contrary to the Musselman case, supra, and no cases holding that a second husband acquires a homestead right in the homestead acquired by the widow from her first husband, and we have found no such cases. In 40 C.J.S., Homesteads, § 259, p. 750, we find the following: “The statutes giving a right of homestead to a surviving husband usually do not give a homestead right to the second husband in the homestead acquired by the widow from her first husband, although the second husband lives with the widow on the homestead, and although he acquires the remainder interest of the first husband’s children.” Footnotes 42 and 43 at 40 C.J.S., p. 750, reveal that the cases relied on for the above quotation are the Musselman case, supra; and the Arkansas case of Kulbreath v. Drew County Timber Co., 125 Ark. 291, 488 S.W. 810. No cases to the contrary are cited. In the Kulbreath case, supra, the second husband had purchased the interest of the children of the first marriage in the property involved and such children were not minors, but the Arkansas court nevertheless held that such second husband acquired no homestead right in the property. The court properly denied the motion of Norbert C. Richards to set aside the property in question to him as a homestead. Judgment affirmed. CORN, HALLEY, BLACKBIRD and JACKSON, JJ., concur. WELCH, J., dissents.