Wycoff v. Snapp

Opinion by

Mr. Chief Justice McBride.

1. We are again called upon to construe the homestead exemption act, which may truthfully be said to be one of the best intended and worst drawn laws upon the statute books. In Mansfield v. Hill, 56 Or. 400 (107 Pac. 471, 108 Pac. 1007), we had occasion to construe the words “such homestead shall descend as if death did not exist,” which are meaningless in themselves, and, after much consideration, were of the opinion that by some oversight or clerical error the word “death” had crept into the act in place of “exemption,” and construed the act as if the sentence read “such homestead shall descend as if such exemption did not exist.” The effect of this construction, to which we still adhere, is that the property descends to the heirs subject to the widow’s right of dower, and is exempt from execution for previous debts of the deceased.

2. The property being thus exempt from execution, it was competent for the County Court to set it apart to the widow for the support of herself and the minor children, as provided in Section 1234, L. O. L. As this section provides that the property so set apart to the widow “is her property,” it follows naturally that she takes a fee-simple estate therein capable of alienation as well as of possession and enjoyment: 6 Words and Phrases, 5698. The statute is a peculiar one, and we derive no assistance from the decision of the courts of other states made upon dissimilar enactments. It is evidently framed upon the idea that maternal affection will be a sufficient incentive to the widow to induce her to apply the proceeds to the use of her children as well as of herself. Whether an action would lie against her for failing to do so need not here be considered.

The decree of the Circuit Court is affirmed.

Affirmed.

Mr. Justice Eakin, Mr. Justice Bean and Mr. Justice McNary concur.