In Re Estate of Brizzolari

I regret that I am unable to agree with my brethren in the decision of the within entitled case. The majority opinion seems to me to ignore an act of the legislature in a matter over which the legislature has supreme control and is likely to produce so much trouble regarding titles that I am constrained to express briefly my reasons for dissenting.

It must be admitted that the legislature has supreme authority in the matter of exemptions. This is especially true with homestead exemptions. Such an exemption was unknown to the common law. 29 C.J. 783, § 3. Leet v. Barr, 104 Or. 32 (204 P. 414, 206 P. 548), and Iltz v. Krieger, 104 Or. 59 (202 P. 409, 206 P. 550); recognize that the homestead is a matter of legislation. There is no suggestion that the Constitution would be infringed to any degree by holding that the probate courts of the state have jurisdiction to set aside the homestead as exempt to the persons entitled to it as prescribed in Section 1234, Or. L., Leet v. Barr did hold, however, that there was an irreconcilable conflict between said Sections 225 and 226 and Section 1234 of Or. L. as those sections read in 1922. That case further held that because said Sections 225 and 226 treated particularly of homestead exemptions and said Section 1234 treated of exemptions in general and because said Section 1234 was enacted prior to said Sections 225 and 226, although at the same session of the legislature, said Section 1234 must give way to said Sections 225 and 226. It is now held by the majority opinion that a probate court is without jurisdiction to set aside a homestead as exempt. The effect of that holding is to destroy entirely the homestead exemption after the owner has deceased. The homestead exemption, according to the majority opinion, is a reality only to the owner while living. The moment he passes the land encumbered by the homestead is no longer exempt from execution.

Evidently the legislature did not intend that such should be the construction of the acts of 1919 now constituting the sections above mentioned. For that reason said Section 1234 was amended and a curative sentence attached in 1923. It is said now that this section is solely a curative statute, but the majority opinion in effect holds that Section 1234 does not include homestead exemptions but refers to such property as was exempt prior to the enactment of the original homestead exemption law in 1893. If that be the case, how is it that the legislature did incorporate in that section a curative statute applicable to homestead exemptions? Why amend a statute by adding a subject not covered by the original section? Respect for the acts of the legislature forbids any such construction. The use of the term "all property exempt from execution" forbids any such construction.

The very purpose of homestead exemption was to preserve a place of abode for the family which could not be taken from them.

"Homestead laws, it has been said, are not founded upon equity, but are enacted as a matter of public policy in the interest of humanity. The preservation of the homestead is considered of more importance than the payment of debts. The object of the provisions is to provide a home for each citizen of the government, where his family may be sheltered and live beyond the reach of financial misfortune, and to inculcate in individuals those feelings of independence which are essential to the maintenance of free institutions. Also, the purpose of the homestead provisions is to protect the family as an entirety, and not the individual who for the time being is the head of the family." 29 C.J. 782, 783, § 2.

I can conceive of no purpose of enacting Section 1234 by the 1923 legislative session except to modify the opinion in Leet v. Barr wherein that opinion in effect denies the application of said Section 1234 to homestead exemptions. The curative sentence was added so as not to disturb titles already vested by virtue of the opinion in Leet v. Barr. There is no necessary inconsistency between Sections 225 and 226 and 1234. The very purpose of the act of 1923 amending said Section 1234 was to override the opinion in Leet v. Barr, which held there was such inconsistency. I would not overrule Leet v. Barr, but I am holding that the act of 1923 does overrule so much of that decision as denies to probate courts the authority to set the homestead aside as exempt from execution to the persons named in said Sections 225 and 226.

A court order is not void unless made without jurisdiction. It matters not how erroneous the order may be so long as the court has jurisdiction of the subject matter and of the parties the order is not void. There is no difference of opinion about an order being void which has been made without jurisdiction. If Section 1234 does not authorize a probate court to set aside a homestead as exempt, then the order made by Judge MORROW in the instant case was absolutely void and Judge TAZWELL had at any time later authority to set it aside and expunge it from the record.

Section 1234 authorizes probate courts to set aside all exempt property. "All" does not mean simply a part. Chapter 2, Title 3, Or. L., embracing Sections 221 to 226, inclusive, makes a homestead exempt from execution. The ordinary meaning of the word "all" in Section 1234 certainly then includes the homestead exemption. No other provision is made for setting a homestead exemption aside after the owner has deceased, except Section 1234. That Section 1234 covers homestead exemption has been uniformly held from the time of the original homestead law enacted in 1893 until the decision in Leet v. Barr rendered in 1922. There is a period of 18 years when the courts uniformly and without exception construed Section 1234 as including homesteads.

How, when and where did our courts lose jurisdiction of that subject matter? Said Section 1234 was not modified by the amendment of 1919, except so as to include widowers as a beneficiary of exempt homesteads; consequently there is no reason for the change in construing that section unless it would be required in order to harmonize with some other section of the Code on the same subject matter. But the construction placed on it by the majority opinion instead of harmonizing does just the opposite. The rule that the general must give way to the particular has no application, unless there is an irreconcilable difference; consequently that rule has no application here because there is no irreconcilable difference between Sections 225 and 226 as contrasted with Section 1234. The three sections should be construed together. See writer's opinion in Overland v. Jackson, 128 Or. 455 (275 P. 21). In the instant case the widow was entitled to the benefit of the homestead exemption as long as she abided in that home. The homestead right in that property was similar to her dower right. The advantage in the homestead exemption is that it covered the entire property and was exempt from execution, while her dower would have been only a half interest for life and was not exempt from execution. There is no more inconsistency in holding that the title to a tract of land passes to the devisee by the terms of a will subject to the homestead exemption in favor of the surviving spouse than there would be in holding that the tract of land would pass to the devisee named in a will subject to the curtsey or dower interest of the surviving spouse. The interests are similar.

The majority opinion is fraught with very dangerous results. How many orders have been made throughout the state by probate courts setting aside homesteads as exempt is not known to us. By the majority opinion all such orders are not merely erroneous but are absolutely void. Old people, as in the instant case, may be residing upon land which they think is exempt from execution and which they think is a place where they may reside in peace and safety during the term of their natural life, but may be surprised as a result of the majority opinion by having the heirs of the decedent dispossess them. Under the majority opinion the order placing such a surviving spouse in possession of the homestead is absolutely void. Such an order would be no defense to an action at law by an heir who owned the land by descent or by will and who sought to recover possession by virtue of the majority opinion. I cannot subscribe to a decision so dangerous. I am not concerned as to whether or not the ruling of Judge MORROW was erroneous or whether or not it was regular. The court had jurisdiction of the subject matter. Judge MORROW was lawfully sitting as judge of that court and his order should and must be respected until it is lawfully set aside by a Superior Court on appeal. The order made by Judge TAZWELL setting aside Judge MORROW'S order was not made until several months later and after more than one term of court had expired between the two orders. The order of Judge TAZWELL setting aside the order of Judge MORROW should be reversed and Judge MORROW'S order restored to full effect and force.

BEAN, J., concurs in the foregoing opinion reversing the order of Judge TAZWELL, setting aside Judge MORROW'S order.

I do not deem the question of the force and effect of the order made by Judge MORROW is necessary to be considered at this time.