Peterson v. Wasserman

AKSCHUKER, Circuit Judge (after stating the facts as above). That the property constituted Wasserman’s homestead while he lived at Sheboygan is undisputed. If at the time of the sale the homestead right still inhered, it is clear the sale itself did not operate to defeat that right, as the statute permits sale to be made of the homestead, and provides that the proceeds shall be exempt for two years, if intended to be invested in another homestead, and it is not questioned that, as found, it was intended to invest in another homestead. The question here is whether Wasserman’s conduct, as indicated, amounted to an abandonment of the homestead, so' that at the time of the sale he had no homestead right in the property. The homestead exemption is of statutory origin, to be measured by the statute which created it, as construed by the courts of the state. The Wisconsin statute provides that "such exemption shall not be impaired by temporary removal with intention to reoccupy the same as a homestead.” Though stated in Binzel v. Grogan, 67 Wis. 147, 29 N. [90] W. 895, that in the interest of the homestead the statute should be given a liberal, and not always a literal, construction, it is hardly to be gathered from the quoted words that on removal from the homestead the “intention to reoccupy” it is deducible from a mere lack of present intention to acquire another homestead. The decisions of the Wisconsin Supreme Court do not leave room for doubt as to the construction we must adopt. In Jarvais et al. v. Moe et al., 38 Wis. 440, in an opinion by Ryan, C. J., the cases were reviewed, and it was held that: “To preserve Ms home upon removal from it, the temporary purpose, the animus revertendi, must be certain and definite. A vague intention to return perhaps at some future time and reside there again will not preserve his home.” In Moore v. Smead, 89 Wis. 558, 62 N. W. 426, the court, speaking by Cassoday, J., said: “The precise question for determination, therefore, is whether Baker’s removal from his homestead in the summer of 1881 was ‘temporary’ merely, ‘with the intention’ of reoecupying the same as a homestead. Certainly he never returned after he moved from the place in the summer of 1881. ‘Temporary’ means, as defined by the dictionaries, ‘lasting for a time only; existing or continuing for a limited time;’ ‘not of long duration; not permanent; transitory;’ ‘continuing but a short time.’ A ‘homestead’ means a place of residence, and implies occupancy and possession as such. The words ‘temporary removal’’ manifestly mean a removal for a fixed and temporary purpose, or for a temporary reason. Phillips v. Root, 68 Wis. 128 [31 N. W. 712]; Jarvais v. Moe, 38 Wis. 440; Herrick v. Graves, 16 Wis. 157. In order to prevent an abandonment by such removal, it must be made with the certain and abiding intention of returning to the premises and residing thereon as a homestead.” And in Blackburn v. Lake Shore Traffic Co., 90 Wis. 362, 63 N. W. 289, Winslow, J., delivering the opinion of the court,.cited these cases with approval, concluding that: “The evidence shows very clearly to our minds that when the plaintiff removed from the premises in question he had no positive or certain intention to return, and that he consequently abandoned it as a homestead.” In the instant case, from the findings of fact as well as the evidence on which they are based, we cannot conclude that, when Was-serman left the Sheboygan home, it was with any fixed and definite present intent to reoccupy it. The very most that can be said is that he was of the mind to return to the home if he did not succeed in business elsewhere.. But in such a purpose there is nothing definite or fixed or positive, but only a contingency in the event of which he might reoccupy. He moved with his family in 1911 to Marinette, where they resided, and where he invested his money in the broom business. If, as he stated, and was found by the court, the fixedness of his residence elsewhere depended upon his business success there, such condition did in fact come into being, for it was testified and found that his business at Marinette proved successful, though afterwards lost to him through destruction by fire. This very success thus eliminated even the one contingency on the happening of which he intended to reoccupy the homestead, and thereby completed the act of its abandonment, if not already complete through his leaving it without the fixed and definite intent to reoccupy. The abandonment once completed through his [91] residence and his success in business at Marinette, the homestead right could not be revived through his subsequent business reverses. If thereafter it was his desire again to make the Sheboygan property his homestead, he could only do so by actually reoccupying it as such. His subsequent residence and business at Rhinelander, his voting there, and his failure to again return to Sheboygan to reside, all tend strongly to confirm the already strong inference that his removal from the homestead was not temporary, nor with definite intention to reoccupy it. From the facts as found by the District Court, as well as from the evidence adduced, under the law of Wisconsin we are forced to the conclusion that Wasserman abandoned the homestead when he removed his family from it, and that the trustee is therefore entitled to have the net proceeds of the sale of the property for the benefit of Wassermatfis creditors. The judgment of the District Court is reversed, with direction to enter a judgment in accordance with the foregoing views.