Christiansen v. Robinson

STRAUP, C. J. This action was brought for a partition of real property situate in Weber county. It is alleged in the complaint, and shown by exhibits thereto attached and made a part thereof, that Mary E. Robinson, deceased, at the time of her death was the owner of the property; that she left surviving her the defendant Brigham M. Robinson, her husband, and the plaintiffs, five in number, her children by a former husband; that all the plaintiffs weré then of legal age, and that the deceased left no minor children; that she and her husband resided on the property as their homestead; that the defendant Robinson was appointed administrator of her estate, and that proceedings were had in probate, whereby the property was set apart tó.the defendant Robinson as a homestead in pursuance- of the homestead statute, the property having been appraised and found to be of a [70] value less than in such case made and provided; and that within a few .weeks after the property was so set apart to him the defendant Brigham M. Bobinson married the defendant Matilda Stone Bobinson. The defendants’ demurrer to the complaint was sustained, and plaintiffs’ action dismissed. The plaintiffs appeal. The ruling requires a consideration of sections 2829 and 2830, Comp. Laws 1907, which are as follows: “Sec. 2829. A homestead consisting of lands and appurtenances not exceeding in value the sum of $2,000, and $250 additional for each minor child, together with all the personal property exempt from execution, shall be wholly exempt from the payment of the debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, or of the minor children in case there be no surviving husband or wife, to be set apart on petition and notice, at any time after the return of the inventory. Sec. 2830. The homestead and exempt personal property shall belong to the surviving husband or wife and minor children; or, if there he no minor children, to the surviving husband or wife; or, if there be no surviving husband or wife, to the minor children. If the surviving husband or wife again marries, or when all of said minor children, arrive at the age of majority, the homestead may be partitioned, one half to the surviving husband or wife and the other half to the said children. The interest of the surviving husband or wife or of any child in the homestead may be disposed of by will, or shall pass by succession' in the proportions aforesaid as other real property, but partition shall not be made except at such times as in this section provided.” By reason of these provisions tbe appellants contend that on tbe remarriage of tbe defendant Brigbam M. Bobinson tbev were entitled to a partition of tbe property, one balf to bim, and tbe- other balf to them in equal proportions. Tbe contention involves the question whether tbe heirs of an intestate, and who were of legal age at tbe time of bis death (or at tbe time when tbe homestead is set apart, a question which we need not now determine), have any interest in and to a homestead which has been set apart in probate to tbe surviving spouse or minor children, or to both. Tbe appellants urge that they have an interest in tbe [71] property, and that they are entitled to a partition of it- when (1) tbe surviving spouse remarries; or (2) wben tbe minor children arrive at tbe age of majority. Tbe two séctions of tbe statute must of course be read and construed together. In tbe first section it is provided that tbe homestead “shall be tbe absolute property of thé surviving husband or wife and minor children, or of tbe minor children in case there be no surviving husband or wife.” In Re Bedford’s Estate, 34 Utah 24, 95 Pac. 518, we had occasion to construe this section and we there held that the persons (a widow and a minor child) to whom the homestead had been set apart in probate became invested “with whatever title the deceased-had to the property at the time of his death,” and that the setting apart of the homestead in effect gave them an estate therein in fee. It, however, is urged that the giving of such a construction to section 2829 renders it in conflict with section 2830. We think not. The first part of section 2830 rather enforces the construction given section 2829. It is there also provided that “the homestead and exempt personal property shall belong to the surviving husband or wife and minor children; or if there be no- minor children to the surviving husband or wife; or if there be no surviving husband or wife .to the minor children.” It is evident that the primary meaning of the word “belong,” and as it is there used, is, to be the property of the persons there mentioned. (5 Cyc. 681.) The word is aptly used to. express ownership. (State v. Fox, 80 Iowa 312, 45 N. W. 874, 20 Am. St. Rep. 425.) The remaining portion of the section providing for a partition “if the surviving husband or wife again marries, or when all of said minor children arrive at the age of majority,” refers only to a partition of the homestead in such case where it was set-apart to a surviving' spouse and a minor child or children, or where set apart to minor , children. The provision for a partition refers only to those to -whom the property was set apart, and to whom it belongs. If there be no surviving spouse, and the homestead is set apart to minor, children,' then'it.may be par [72] titioned among them (not other heirs) when all of the minor children arrive at the age of majority. If there be a surviving spouse and minor child or children, and the homestead is set apart to them, it again may be partitioned between or among them (not other heirs) when the surviving spouse “again marries,” or when all of the minor children arrive at the age of majority. That other heirs are not in such ease to share in the property, and are not entitled to a partition, is clearly indicated by the language employed in the statute that “the homestead may be partitioned one-half to the surviving husband or wife, and the other half to the said children,” the minor children. When there is no surviving spouse, and only one minor child, and a homestead is set apart to it, the realty becomes its “absolute property,” and “belongs” to that child. When there is no minor child, and the homestead is set apart to the surviving spouse, the realty also becomes his or her absolute property, and belongs to him or hex’. In neither of such instances can the question of partition arise, for there is no one, other than the person to whom the homestead was set apart, who- has any interest in or to- the property. In answer to the question propounded we, therefore, ■ say that when a homestead has been set apart to a surviving spouse and minor children, or if there be no minor children, to the surviving spouse, or, if there be no sui’viving spouse, to the minoi children, the homestead becomes the absolute property of the persons to- whom it was set apart, and that it belongs to them (subject, of course, to any incumbrance given for the purchase price and other valid liens, as provided by the statute and the Constitution, a matter not here involved), and that in such case the other 1 heirs of the intestate, and who had arrived at the age of majority at the time of his death (or at the time of setting the homestead apart), have no interest in or to a homestead so set apart. The cases to which appellants have referred us are not in point, for the ruling in all of them was made upon a [73] statute essentially different from ours. It is especially urgedj however, that tbe cases from tbe Kansas courts are pertinent because of tbe similarity of tbe statute of that State and tbe statute of tbis State. But on examination of tbe Kansas statute it will be observed that tbe widow and the children of the intestate (not tbe minor children, as provided in tbe Utah statute) are entitled to tbe homestead. There tbe widow alone is entitled to tbe homestead when tbe intestate left no .children; here tbe surviving spouse is entitled to it, when tbe intéstate left no minor children. We are not aware that the term “children” in the Kansas statute has been construed by tbe Kansas courts to mean minor children and for that reason it should be said that tbe statutes are alike. In tbe decisions to which we have been referred tbe Kansas statute is not given such a construction. But when it is provided by a statute, as is provided by our statute, that tbe surviving spouse is entitled to tbe homestead when tbe intestate left no minor children, we think it must be held that all other children are' necessarily excluded, and when there are no minor children, tbe homestead becomes tbe absolute property of tbe surviving spouse. We think the ruling sustaining tbe demurrer was in accordance with the statute. Tbe judgment of tbe court below is therefore affirmed, with costs. .KRICK and McCARTY, JJ., concur.