Wilcox v. Cloward , 88 Utah 503 ( 1936 )

I am unable to agree with that part of the prevailing opinion wherein the finding and judgment of the trial court disallowing the homestead claim of Cora Cloward is affirmed. Cora Cloward pleaded her homestead right and offered evidence in support of the right. In the prevailing opinion it is said:

"In an equity case it has been the rule of this court not to disturb a finding of the lower court on contested or conflicting evidence unless the evidence clearly preponderates against the conclusion or finding."

If by "contested" evidence the same thing is meant as conflicting evidence, I agree with that statement of the law. The opinion then proceeds to say: "In a sense, the witnesses as to the time when work began were all interested. The court had a chance to observe their demeanor while on the stand. The finding of the court that the work of Wilcox was begun before the 6th day of June will therefore not be disturbed." Immediately following the above statement it is then said:

"Another conclusion of the court stands in the same category. We refer to the matter of homestead."

If it is meant that the rule of law applicable to equity cases to the effect that this court will not disturb a finding of the lower court on conflicting evidence unless the evidence clearly preponderates against the conclusion or finding, I agree. If it is meant that the witnesses were all interested, I agree. If it is meant that the court had a chance to observe their demeanor while on the stand, I again agree. But if the statement, "stands in the same category," means that the finding against the homestead claim rests upon "contested or conflicting evidence," or that the evidence does not preponderate in favor of the homestead claim, then I do not agree.

Quoting at some length, the prevailing opinion states:

"Cora Cloward claimed a homestead because for twelve years her unmarried sister, Pearl, had lived with her and kept house while she taught school and had lived in this home from the time that Cora moved into it, between the 12th and 19th of September. Section 2905, Comp. Laws Utah 1917, in effect when this home was built, provides as far as material here, as follows:

"``The phrase "head of a family" as used in this title includes within its meaning: * * *

"``2. Every person who is (has) residing on the premises with him or her and under his or her care and maintenance, either: (a) his or her child, or the child of his or her deceased wife or husband, whether by birth or adoption; (b) a minor brother or sister, or the minor child of a deceased brother or sister; (c) a father, mother, grandfather, or grandmother; (d) the father, mother, grandfather, or grandmother of a deceased husband or wife; (e) an unmarried sister, or any other of the relatives mentioned in this section, who have attained the age of majority and are unable to take care of or support themselves.'

"It will be noted that for one to be the head of a family where the family is constituted by such claimed head and an unmarried sister, there must concur with the element of care and maintenance and residence on the premises claimed as a homestead one other element not required in the case of the persons named in subsection 2, (a), (b), (c) and (d), to-wit, the element that the unmarried adult sister must be unable to care for and support herself."

Deferring the discussion of the matter involved in the above statement, the prevailing opinion proceeds to say:

"There was testimony in the case on the part of Miss [Cora] Cloward, Mrs. Watters, a married sister, and Pearl Cloward, the unmarried sister, that Pearl was sickly and had been since childhood days. She tired easily and was nervous and could not assume responsibility. It arose from children's diseases. She helped around the house but could not assume heavy house work. She had never tried to get work away from her sister. There was no question under the evidence but that Cora supported Pearl and maintained her. Counsel for Cora contend that there was no evidence to the contrary on the point that Pearl was unable to care for and support herself. This is the pivotal point in this question of homestead. The court saw Pearl in the court room. It was better able to judge from seeing her whether she was able to care for herself than we would be from reading the record. In such a matter the inspection of such a person is doubly valuable. She never had supported herself, but on the other hand the testimony was that she never tried. The court, in spite of the testimony of the three sisters, who either had a direct interest in the result of the suit or had the interest of a close relative, could best judge of their credibility and from the appearance and demeanor of Pearl whether she was able to support and care for herself. We cannot say, moreover, that the court was wrong if it concluded that if Pearl could do as much as she had done in keeping house for Cora that it might be concluded that she could earn her support doing the same for others. We cannot disturb the finding that Cora was not the head of a family as defined by section 2905, supra, when the family is alleged to be constituted by herself and her unmarried sister."

It is with this conclusion that I cannot agree. I am not satisfied that the construction placed upon the statute is correct. I think the person owning and residing upon the claimed homestead, and having the care and maintenance of such unmarried sister is the head of a family. I am of the opinion such homestead claimant has not the added burden of showing that the unmarried sister is "unable to take care of or support" herself. The section of the statute as it appears in its revised form (section 38-0-5, subsec. 2, R.S. Utah 1933), whether the revision was intended to change the statute, clarify it, or otherwise, does not impose the added element on the "unmarried sister" suggested in the prevailing opinion. It reads:

"Every person who has residing with him and under his care and maintenance, either: (a) His child, or the child of his deceased spouse, whether by birth, or adoption; (b) a minor brother or sister, or the minor child of a deceased brother or sister; (c) a father, mother, grandfather or grandmother; (d) the father, mother, grandfather or grandmother of a deceased spouse; (e) an unmarried sister; (f) a brother or sister, or child of a deceased brother or sister, if unable to take care of or support himself."

The serious error to my mind is the evaporation of evidence by the application of a rule, wholesome enough in itself, whereby unimpeached, unimpaired, uncontradicted creditable evidence is disregarded and a finding directly contrary thereto is made. Where there is a direct conflict in the evidence and the determination of the fact in an equity case is dependent upon the credibility of the witnesses and the weight to be given to their testimony, then the fact that the trial court had opportunity to observe the witnesses and is in better position to weigh conflicting evidence is taken into consideration and in close cases may be the determining factor precluding this court from disturbing the findings made. Utah Black Marble Co. v.American Marble Onyx Co., 43 Utah 68, 133 P. 472.

We do not have such case. The witnesses who testified as to the elements going to the establishment of the ultimate fact of "head of a family" were not impeached, nor was their testimony in any particular discredited, impaired, or contradicted, as revealed by the record. On the point the evidence is all one way. The trial court is not at liberty to disregard creditable, uncontradicted, unimpeached, or unimpaired evidence and make a finding contrary thereto. Parker v. Weber County IrrigationDistrict, 68 Utah 472, 251 P. 11.

The summary of the evidence as set out in the prevailing opinion, I think, should have led to a different conclusion. However, the evidence is fully and fairly abstracted. There are three witnesses unimpeached, not discredited, not contradicted. While they may be said to be related and interested, yet the record reveals in so far as a record may do so that they were fair, candid, and truthful, both on direct and cross-examination. There is nothing improbable or unreasonable in the evidence, nothing inconsistent, unusual, or unnatural about the circumstances, or anything related to the situation. On the contrary, it is just such a situation as might be expected to develop out of the circumstances shown. The following quoted from the abstract correctly reflects the evidence set out in the transcript with which it has been carefully compared. Cora Cloward testified:

"I have a sister living with me, Pearl Cloward. She has lived with me for twelve years. Prior to that she lived in the family home with her parents at Monroe, Utah. I am acquainted with her condition from the time she was a child. She has always been a sickly child. She has had all the diseases that children have, whooping cough, and measles. I don't remember the time. They left her with nervousness and it impaired her hearing and her eyesight. She was not able to go to school regularly. She was not strong enough. Since she grew older she hasn't had the best of health. She has been sickly and weak all her life. She has had doctors attending her. After our parents died I wanted her to come up and she came up with me, and since that time I have taken care of her, and it has been necessary for me to take care of her. I have supported her during that time. She has never had any property. Whatever she has received I have furnished it to her since the time she has lived with us. She has never been able to work out. She is not able to work. She helps keep the house for me, but as far as housecleaning or heavy work like that, she doesn't do it. She can help in the house. She is up and down during the daytime. She will always have to lay down in the morning after she has washed the dishes, and then again in the afternoon the same way. She is 48 years old. She is here in the Court room. I have had her under Dr. Hagan's care here in Spanish Fork, and I have paid for this care. During this time I have been teaching school. She has not been able to live alone. She always goes to my sister's when I am away. * * * During the twelve years that Pearl has lived with me I have taught school all the time. It has been necessary for me to have some one to take care of the house work. Pearl has taken care of the house work with my help. She has done some cooking, washing dishes, sweeping floors and gone down town occasionally. Made the beds and done some washing, and ironing for us two."

Pearl Cloward testified:

"My name is Pearl Cloward. I live in Spanish Fork, with Cora. I have lived with her about twelve years. I remember about Cora Cloward going away in the summer sometime ago. I remember when her home was built. She went away in June and came back sometime in August. * * * My health isn't good by any means. It has never been good that I remember of. Cora has been supporting me the last twelve years. Previous to that time I lived with my parents. My helath was not good then. I can do but very little work.

"Q. Just tell the Court how your strength is, and what you can do and what you have done as near as you can remember? A. Well, my sister Cora, she assumes all the responsibility of the home, and I help her wash dishes when I can, and I help with the meals when I can, and sometimes I try to make a bed, but I don't make very good at it. I do a little washing. I am not able to do it all the time. I am nervous, very nervous, and my eyesight is impaired. I went some to school, as much as I could, as much as my health would permit me to go. I stumbled through it. I don't think I made a great success of it. I was twenty-four years old when I was able to go through the eighth grade.

"Q. Tell the Court how you were able to go to school when you were young. A. Well I would go, maybe a day, and then I could be out two or three days, and then I would go again, and then maybe I wouldn't do it again. Maybe some years I got half of it and some years I didn't go any. That was on account of my health.

"Q. Would you be able to go out and work and get a job? A. I don't think I would.

"Witness further testified that she had no means of her own. That she didn't get anything in particular from her mother's estate. There was just a lot and it was sold and divided among a family of ten. I can't remember how many dollars I got. That was about twelve years ago when my mother died. I have never earned anything from working, outside of helping Cora. My health is nothing to brag of now. I am able to be around all day some days, and some days I am not. My doctor has been Dr. Hagan when I have had a doctor. I have called on him most of the time."

Arminta Watters testified:

"That Pearl and Cora Cloward are her sisters. That she has been in a position to observe Pearl Cloward and know her condition during the most of her life. That she (Pearl) is 48 years of age. That she was a small, under-nourished baby, and that she has been in poor health as long as she, Mrs. Watters, could remember. She has never been able to go out to work. That she was acquainted with her schooling. That she went just at intervals. She was determined to go to school and would go when she could. Sometimes she would go six months, sometimes two months, sometimes one day and stay out the rest of the week. That is the general condition of her school life. She was 24 years old when she quit school and that since that time she has been acquainted with her general condition. She is just poorly. Some days she is down and out and some days she feels pretty good. That has been the general condition all the time. She has never been robust. She is nervous. She has impaired eye-sight, and impaired hearing. She stayed at my home about two months during the summer of 1930. Her condition during those two months was just the same as it has always been. One day she would be able to help a little around the house, and may be the next day she wouldn't be able to do anything at all. That's the way it was during that time, and that's the way it has been during my knowledge of her. Her condition is now about the same as it has been in the past. She has never kept house on her own account.

"Recross examination by Mr. Morgan (Attorney for respondent) during which Mrs. Watters testified in substance, as follows:

"That Pearl has been staying with Cora. That she has washed dishes a part of the time, and doing a part of the cooking. She has done what you would call brushing up a little. She has been helping with the washing, but would never do it alone. She has done some ironing."

Under the evidence Pearl Cloward is a dependent. She is under the care and maintenance of Cora. To disrupt this household means to add to this satisfactory family set-up one more element of hardship and dependency which the homestead provisions of the Constitution and the law were designed to obviate. It is a policy of the state to foster home relationships, home ownership, and to encourage, establish, and help to maintain them. Homestead exemptions have for these reasons become a part of the public concern of the state. The law is always construed liberally in favor of homestead exemptions. I know of no reason why in weighing the evidence, if it became a case of weighing testimony, the same principle should not be applied. In the instant case to my mind the evidence and law establish that Cora Cloward is the head of a family as defined by the statute and is entitled to claim and have allowed to her a homestead exemption.

Had the house or home been the home of the parents of Cora and Pearl Cloward and Cora and Pearl had lived there until the parents had died and the home had then been left to Cora and for the purpose of repairing the same the identical relationships as to liens, mortgage, and homestead had been set up, and under the same testimony, I have no doubt the trial court or any other tribunal charged with the responsibility of determining the questions here submitted would have declared Cora Cloward entitled to claim her homestead and would have allowed the same. For the reasons stated, I dissent.