
    [No. 15294.
    In Bank.
    November 10, 1893.]
    H. M. KEYES et al., Respondents, v. HENRY E. CYRUS et al., Appellants.
    Estates of Deceased Persons—Probate Homestead—Exemption from Forced Sale—Debts of Widow.—A homestead set apart to the widow of a decedent by the probate court, under the provisions of section 1405 of the Code of Civil Procedure, is exempt from forced sale for her debts contracted previous to the death of her husband as well as for his debts.
    Id.—Object of Homestead Law.-—The object of the homestead law is to protect the family in the right to preserve their home, and it will be assumed that any legislation upon the subject of the homestead is intended for its protection, and that when the legislature has made provision for setting apart a homestead out of the property of a decedent, it was its intention that it should be exempt from forced sale.
    Id.—Remedial Statutes—Liberal Construction.—Homestead statutes being remedial in their nature are to he construed liberally and in favor of carrying out the manifest purpose of the legislature, rather than that their operation be restricted to the strict letter in which they are framed.
    Id.—Construction of Codes. —Section 1240 of the Civil Code, which declares that “the homestead is exempt from execution or forced sale, except as in this title provided,” is not in terms limited to the homestead selected by the parties, hut applies to every homestead, whether selected and recorded by the voluntary act of the parties or by an order of the probate court under the provisions of section 1465 of the Code of Civil Procedure.
    Appeal from a judgment of the Superior Court of Sonoma County.
    The facts are stated in the opinion of the court.
    
      Barham & Bolton, for Appellants.
    
      Rose & Pond, and J. W. Oates, for Respondents.
   Harrison, J.

July 22, 1889, M. M. Keyes and Barbara Keyes, his wife, made their promissory note to John Cyrus for seven thousand one hundred and seventy-five dollars, and as security for its payment executed to him a mortgage upon certain lands in Sonoma county. M. M. Keyes died October 17,1889, and his widow Barbara was appointed administratrix of his estate and continued to act as such until August 10, 1891, when her final accounts were settled, and she was discharged from her trust. No homestead had been selected in the lifetime of said Keyes, and on June 30, 1890, the superior court for Sonoma county upon due proceedings had therefor, by its order made that day, set apart as a homestead for the use of the said Barbara certain lands belonging to the estate of said Keyes other than those included in the mortgage, and on the 7th of July a copy of the said order was recorded in the office of the county recorder. The property so set apart as a homestead was community property of the said Barbara and her husband, and he left no minor children surviving him. At the time the land was set apart to her Barbara was residing thereon, and continued to reside there until December 17, 1891, when she conveyed the premises to the plaintiffs. After the death of Keyes, Cyrus presented to the administratrix a claim against his estate upon the note and mortgage, which was duly allowed and approved, and thereafter, in an action instituted in the said superior court for the foreclosure of the mortgage, a judgment was rendered against said Barbara as administratrix, and also individually, for the amount of the note, and directing a sale of the mortgaged premises and the application of the proceeds thereof upon the judgment, and, if there should be any deficiency, that it should be docketed against said Barbara. Under this judgment the mortgaged lands were sold June 15, 1891, and the proceeds being insufficient to satisfy the judgment, the deficiency thereof, amounting to three thousand seven hundred and ninety-eight dollars, was docketed against Barbara on the 16th of June, 1891. January 5, 1892, the defendants herein, to whom Cyrus had assigned his judgment, caused an execution to be issued on this deficiency judgment and placed in the hands of the sheriff, under which he levied upon the lands that had been set apart to Barbara, and was advertising the same for sale when the plaintiffs brought this action to restrain the said sale. Judgment was rendered in their favor, and the defendants have appealed.

The cause is brought here upon the judgment-roll alone, and the question, presented for determination is whether a homestead set apart to the widow by the superior court under the provisions of section 1465 of the Code of Civil Procedure is liable to forced sale for a debt contracted by her previous to the death of her husband. The affirmative of this proposition is maintained by the appellants, upon the ground that the section of the statute authorizing the court to set apart a homestead out of the estate of a decedent contains no ■express declaration that when set apart it shall be exempt from forced sale, while on the part of the respondents it is contended that every legal homestead, whether made so by voluntary selection or by the action of the court, is exempt from a forced sale.

The word “ homestead ” has both a popular and a legal signification. In its popular sense it signifies the place of the home—the residence of the family: “ it represents the dwelling-house at which the family resides, with the usual and customary appurtenances, including the outbuildings of every kind necessary or convenient for family use, and lauds used for the purposes thereof.” (Gregg v. Bostwick, 33 Cal. 227; 91 Am. Dec. 637.) It is in this sense that the word is used in the constitution, and also in the statute; in other words it is the actual homestead to which they refer, and to which they purport to add certain legal incidents. The term itself is nearly as old as the English language, but its use in legislation is quite modern, and is peculiarly American. The ultimate object of all legislation respecting the homestead is to protect the family in the right to preserve their home, both from their own improvidence, and also from the rapacity of their creditors; and, in view of this fact, it is proper to assume that any legislation upon the subject of the homestead is intended for its protection, and that when the legislature has made provision for setting apart a homestead out of the property of a decedent it was its intention that it should be exempt from forced sale. Such statutes, being remedial in their nature, are to be construed liberally, and in favor of carrying out the manifest purpose of the legislature, rather than that their operation be restricted to the strict letter in which they are framed. The policy of such legislation has never been questioned. It is in furtherance of the welfare of the state that its citizens shall be a permanent body, whose individual interests in its prosperity and development shall, as far as possible, be identified with the public interest.

A consideration of the terms used in the chapter of the Code of Civil Procedure in which section 1465 is contained corroborates the conclusion that the legislature intended that the homestead set apart under its provisions should have the legal incident of exemption from forced sale. The chapter is itself entitled: “ Of the provision for the support of the family and of the homestead,” and the heading to article I of the chapter in which this particular section is found is: Of the provision for the support of the family.” These headings are a portion of the statute, and may be examined for the purpose of determining the particular intent of the legislature with regard to the chapters in which they are placed. (Barnes v. Jones, 51 Cal. 306.) Section 1465 itself provides that if no homestead has been selected in the lifetime of the decedent the court must select a homestead for the use of the surviving husband or wife and the minor children,” and section 1466 provides that if the amount set apart under this section be insufficient for the support of the family the court must make a further allowance for their maintenance, thus showing that whatever is set apart under section 1465 is for the support ” as well as the “ use” of the family. The authority given to the court in the first part of section 1465 to set apart for the family all the property exempt from execution, including the homestead selected,” implies that the property, when set apart, is exempt from execution; and the subsequent provision therein for setting apart a homestead in case none has been selected during the lifetime of the decedent also implies that such homestead has the same exemption from forced sale as a homestead that had been selected by the decedent in his lifetime. The manifest object of the section is the support of the family, and to make provision for their support and maintenance. These demands of the family are deemed superior to those of heirs or creditors. “ Setting apart a homestead is a part of the probate proceeding as much as is a family allowance.” “It is a right bestowed by the beneficence of the law of this state for the benefit of the family.” (Estate of Moore, 57 Cal. 442.) A homestead may be set apart to the widow, even though the estate be insolvent, and the property so set apart constitute the entire estate of the decedent; but if the homestead thus set apart to her could be immediately taken in execution by one of her creditors it would fail to be available for her use or support, and it might happen that her creditor would fare better than a creditor of the decedent whose money had perhaps been used to purchase the very property so set apart. The question here presented was not involved in Estate of Walley, 11 Nev. 260, and what was said thereon in the opinion in that case was- not concurred in by the full court.

As the general policy of the law is to protect the homestead of the family the foregoing construction of this section harmonizes with that policy, and is consistent rather than in conflict with the provisions of the Civil Code for creating a homestead. Those provisions do not, either in terms or by implication, make that the exclusive .mode of impressing the actual homestead with the legal incident of exemption from forced sale. They relate exclusively to its voluntary selection, and afford a mode of designating it and making it a matter of record, so that the world may have notice of the property which constitutes the actual homestead. A homestead selected under these provisions has also certain other incidents in addition to its exemption from forced sale, such, for example, as the character of the estate created thereby, and the right of survivorship incident to that estate. Section 1240 of the Civil Code, which declares that “the homestead is exempt from execution or forced sale, except as in this title provided,” is not in terms limited to the homestead selected by the parties, and, as the codes are to be construed as a single statute (Pol. Code, sec. 4480), the provisions of this section must be held to apply to every homestead, whether selected and recorded by the voluntary act of the parties or by an order of the superior court.

The judgment is affirmed.

McFarland, J., De Haven, J., Garoutte, J., Fitzgerald, J., and Paterson, J., concurred.

Beatty, C. J., dissenting.

I dissent upon grounds which are fully stated in my opinion in Estate of Walley, 11 Nev. 260.

The homestead set apart by the probate court goes to the surviving husband or wife freed of all liability for any debt of the deceased spouse; but there is no provision of law exempting it from liability for debts of the survivor, whether contracted before or after the order setting it apart, and nothing therefore to prevent the operation of the general rule prescribed by section 688 of the Code of Civil Procedure.

Nor is it at all necessary in order to subserve the general policy of the law to construe the statute as it is construed in the opinion of the court. When a homestead has been set apart by the probate court to a widow, and thus exempted from the claims of creditors of the deceased husband, if she desires to exempt it from the claims of her own creditors she has only to make a declaration as head of a family, if she has children or other dependent relatives residing with her, in which case it is exempt to the full value of five thousand dollars; or if she has no children or dependent relatives she can, like others similarly situated, secure exemption to the extent of one thousand dollars. This gives her all the advantages of other persons in her situation, and I can see no reason for giving her any greater right as against the debts that she voluntarily contracts.  