Motion to modify former opinion granted April 28, 1931 ON MOTION MODIFYING OPINION (298 P. 905) This is a motion for modification of our opinion in the case ofIn re Banfield's Estate, filed March 17, 1931, wherein we awarded to petitioner, widower of Marie Banfield, deceased, as his homestead, lot 9, block 5, in Howe's addition to Portland, subject "to the expenses of the last sickness and the funeral of decedent, and the costs and charges of probate." The order entered therein, the petitioner asserts, "should be supplemented by adding thereto the words, `if there is not sufficient other property in the estate to meet such expenses'." The Oregon Homestead Law has been the subject of much litigation and considerable legislation.
In 1893, the Legislative Assembly of this state enacted a law "To Exempt Homesteads from Attachment and Judicial Sale." See General Laws of Oregon, 1893, p. 93. Section 1 of that act provided for the exemption from judicial sale of the family homestead, and section 2 that such homestead must be the actual abode of the family, or some member thereof. Section 3 fixed a limitation of $1,500 in value. This law appears as section 221-226, incl., Bellinger and Cotton's Code, and as sections 221-226, incl., L.O.L. By chapter 221, General Laws of Oregon, 1905, section 1 of the act was re-enacted. The act was revised by chapter 112, General Laws of Oregon, 1919, which is entitled, "An act to provide a homestead exemption law, and to repeal sections 221, 222, 223, 224, 225 and 226 of Lord's Oregon Laws, and all acts and parts of acts in conflict herewith." By chapter 263, General Laws of Oregon, 1923, the legislature amended and reenacted *Page 176 section 1234, Oregon Laws, relating to setting apart for the husband, widow or minor children of the deceased all property exempt from execution, and by the re-enactment of that section ratified and confirmed orders theretofore made by any court or judge thereof. Sections 225 and 226, Oregon Laws, and section 1234, Oregon Laws, as amended by chapter 263, General Laws of Oregon, 1923, relating to homesteads, were amended by chapter 345, General Laws of Oregon, 1927. In section 2 of this chapter, the same being section 226, Oregon Laws, there appears for the first time the proviso objected to in the instant case, i.e., that "such homestead shall be subject to and charged with the expenses of his last sickness and of his funeral and the costs and charges of probate." Under our homestead exemption statute, the exemption is limited to a specified area, and to the specified value of $3,000. If, as we did in our original opinion in this case, we are to construe this language of the statute literally, the homestead of petitioner is subject to the expenses of decedent's last sickness in the sum of $28.50, funeral expenses in the sum of $575.45, and costs and charges of probate in about $2,000 — and this notwithstanding the estate is appraised at $37,881.34.
In our search of the authorities, we have found no case on all fours with the facts in the case at bar. But we have found much authority sustaining the proposition that this statute is a remedial statute and, to accomplish its beneficent purpose, should be broadly construed.
In Thompson on Homesteads and Exemptions, at section 1, the author has expressed his views on the homestead exemption law in the following language:
"The wise and benevolent policy which dictated the enactment of these laws has been the theme of considerable *Page 177 forensic and judicial eloquence. The late Senator Benton, advocating in the United States senate the adoption of a general homestead policy, said: `Tenantry is unfavorable to freedom. It lays the foundation for separate orders in society, annihilates the love of country, and weakens the spirit of independence. The tenant has, in fact, no country, no hearth, no domestic alter, no household god. The freeholder, on the contrary, is the natural supporter of a free government; and it should be the policy of republics to multiply their freeholders, as it is the policy of monarchies to multiply their tenants.' `There is,' said Tarbell, J., * * * `unquestionably no greater incentive to virtue, industry, and love of country than a permanent "home," around which gather the affections of the family, and to which the members fondly turn, however widely they may be dispersed.' * * *
"And we find scattered through the cases which involve the construction of these laws, such expressions as these: `* * * That the homestead exemption was founded upon principles of the soundest policy cannot be questioned. Its design was, not only to protect citizens and their families from the miseries and dangers of destitution, but also to cherish and support in the bosoms of individuals those feelings of sublime independence which are essential to the maintenance of free institutions. These are noble objects.'"
One of the fundamental rules of statutory construction, codified as Oregon Code 1930, § 9-214, reads:
"In the construction of a statute, * * * the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such construction is, if possible, to be adopted as will give effect to all."
It is likewise fundamental that various parts of a statute should be read so that all may, if possible, have their due and conjoint effect without repugnancy. *Page 178 See Spencer v. Portland, 114 Or. 381 (235 P. 279). So, in the construction of a statute, the intention of the legislature is to be ascertained and effectuated, if possible: Oregon Code 1930, § 9-215. This rule has been applied over and over again by our court. Kirk v. Farmers' Union Grain Agency, 103 Or. 43 (202 P. 731); State ex rel. v. Slusher, 119 Or. 141 (248 P. 358). In other words, every statute must be construed with reference to the object intended to be accomplished by it. In this connection, we direct particular attention to the following excerpt from 1 Federal Statutes Annotated, 78:
"It has been laid down again and again that `a thing which is within the intention of a statute is as much within the statute as if it were within the letter; and a thing which is within the letter of the statute is not within the statute, unless it be within the intention of the makers.'"
See, also, the many authorities under note 2.
The same editor says, at page 55:
"When endeavoring to ascertain the intention of the legislature, courts are justified, under some circumstances, in giving weight to considerations of injustice or hardship that may arise from a particular construction of a statute. The terms employed by the legislature are not to receive an interpretation which conflicts with acknowledged principles of justice if another sense, consonant with those principles, can be given to them."
In the case of Mansfield v. Hill, 56 Or. 400 (107 P. 471, 108 P. 1007), this court, speaking through Mr. Justice EAKIN, said, concerning the statute under consideration: "This law is only a statute of exemption." See also, Marvin Co. v. Piazza,129 Or. 128 (276 P. 680).
The object of the homestead exemption laws is well understood. This object is to assure to the unfortunate *Page 179 debtor, and his equally unfortunate but more helpless family, the shelter and the influence of home; and, in its promotion, courts may well employ the most liberal and humane rules of interpretation. See 1 Freeman on Executions (2d Ed.), p. 746.
We do not sanction the enlargement or expansion of the meaning of words by the process of construction. However, from the very nature and purpose of the homestead exemption law itself, it would seem apparent that, by the enactment of 1927, it was not the intention of the Legislature to deprive any person of the protection and comfort of a homestead when such protection may be most needed. In the instant case it is the widower who claims the homestead as exempt. However, it were quite as possible to find, in the person claiming such homestead, a poor, unfortunate widow, perhaps with small children looking to her as their only means of support. If, irrespective of the value of the estate, the homestead of the petitioner herein is held to be subject to the expenses of the last sickness, funeral expenses and costs of probate, so, too, under the law, is every other homestead likewise liable for such claims. Such construction, in the opinion of the writer, would operate to defeat the very purpose of the homestead exemption law.
In view of the object and purpose of this law, and in view of the liberal interpretation placed upon it by eminent textwriters as hereinabove noted, we amend our previous order, in which we declared the homestead of the petitioner herein to be "subject to the expenses of the last sickness and the funeral of decedent and the costs and charges of probate," by adding thereto the words "if there is not sufficient other property in the estate to meet such expenses."
BEAN, C.J., BELT and KELLY, JJ., concur. *Page 180