
    EXEMPTIONS — DOWER.
    [Sandusky (6th) Circuit Court,
    May 20, 1902.]
    Parker, Hull and Haynes, JJ.
    
      B. F. Bretz et al. v. Loia A. Moore.
    1. Exemption Laws Construed Equitably and Liberally.
    The policy of the law is to construe exemption laws equitably and liberally, so as to effect the purposes of their enactment.
    2.' Section 5437 Rev. Stat., Allowing Exemption in Lieu of Homestead out' of Proceeds of Sale, Applicable to Voluntary Sales.
    Section 5437 Rev. Stat., allowing the widow, or in case there he no widow, an unmarried minor child, to hold in lieu of a homestead the residue of the proceeds not exceeding $500, arising from a sale of the homestead, made to pay any lien which precludes the allowance of a homestead, applies to a sale voluntarily made by the heirs and widow, and is not limited alone to cases where the homestead is brought to sale by the-mortgagee or administrator, or under legal process which compels a sale.
    3. Widow Entitled to Dower and $500 in Lieu of Homestead Prom Proceeds of Mortgaged Premises Under Sec. 5437 Rev. Stat., When.
    Where the widow and heirs, all of whom are sui juris and have full knowledge of the situation, voluntarily and mutually agree among themselves to sell at private sale, the homestead property, pay off a mortgage thereon, and deliver the balance to the administrator of the deceased husband and father for the purpose of paying any indebtedness against the estate, which mortgage precluded the allowance of such property as a homestead by reason of .having been executed by the deceased and his wife (now the widow), which sale is duly made, the mortgage paid by the widow and heirs direct to the mortgagee, and the balance delivered to the administrator in accordance with the terms of the agreement; in such case, the administrator holds the fund so delivered to him as trustee, and not as administrator; the widow, not having waived her right .thereto under the agreement, is entitled to receive, in addition to the value of her dower interest, not exceeding $500 from the fund in lieu of a homestead under Sec. 5437 Rev. Stat., and her right th.ereto is not lost by reason of her abandonment of all claim to hold the premises as a homestead; and the heirs are estopped from denying the purpose of the sale, or the right of the widow in the fund so created.
    Error to tbe common pleas court of Sandusky county.
    This action was brought by Loia A. Moore against B. F. Bretz„ Henry Moore and Minnie "Huffman. The petition alleges that B. F. Bretz was appointed administrator of John F. Moore, deceased, June 22, 1900; that the plaintiff was the widow of John F. Moore, who died on June 18, 1900,'and that Henry Moore and Minnie Huffman were children of John F. Moore and the only heirs of said deceased; that Moore died seized of a lot in Greenspring, Seneca county, Ohio; that prior to his death he borrowed $600, and he and the plaintiff executed 
      a mortgage upon the real estate to secure it; that the real estate was' occupied up to the time of his death by said Moore and the plaintiff as a family homestead; that Moore left other unsecured indebtedness at the time of his death, the amount of which was at that time unknown; that the plaintiff and said Henry Moore and Minnie Huffman, to satisfy the mortgage indebtedness and to provide for the other indebtedness if the personal assets should be insufficient to pay it, sold the real estate constituting said homestead to one Zimmerman for $1,450; that Zimmerman assumed the mortgage, then amounting to $571.50, and paid', the balance of the money, $878.50, to B. F. Bretz, which he, as alleged in the petition, “deposited in his name as such administrator, but kept, separate and never mingled with the assets of said estate, and has been: held by him as trustee to be paid by him to the persons entitled to the same.-’ ’
    That thereafter and,on August 16, 1900, plaintiff demanded that she be paid $500 out of said fund in lieu of a homestead, and $348 in lieu of her dower; that Bretz paid the amount of the dower, but refused to pay the $500 in lieu of a homestead; that the amount of the personal estate was found to be sufficient and did pay the debts of the estate, including the year’s allowance to the plaintiff, and she prays for a judgment for $500, and interest from August 16, 1900.
    The answer admits' substantially the facts in the petition alleged, admitting that $348 were paid her in lieu of her dower, and that he refused to pay the $500 in lieu of a homestead. He denies that he received the $878.50 as administrator. He avers it was paid to him to be paid to the widow and the children according to their rights. He avers that an agreement was made by the plaintiff and the said children and the purchaser to sell said land and pay said mortgage, and that the plaintiff voluntarily entered into the arrangement without any suggestion or interference on the part of the defendant. He avers that there was sufficient personal estate to pay all the unsecured, indebtedness and that he has paid the same and paid the widow’s year’s allowance, and that the widow was not precluded from occupying the premises as a homestead by reason of the encumbrance thereon, but that she was informed by this defendant that she’ could occupy it and that she could, not be disturbed for at least one year.
    He further sets up that on June 30, 1900, she abandoned the premises and that she made the arrangement for a sale of the premises with the children, for the purpose of defrauding them out of $500. He says that after the payment of the widow’s dower, he holds the sum. of $530, subject to the order of the court.
    
      Henry Moore and Minnie Huffman, tbe children, also filed answers somewhat similar.
    Replies were filed to these and the case came on for trial anu was fried, resulting in a verdict and judgment for the plaintiff for the amount of her claim of $500 and interest from August 16, 1900. A bill of exceptions was taken and the error prosecuted to the circuit court. i
    E. B. King and Geo. H. Withey, for plaintiff in error:
    Plaintiff was not entitled to offer and give in evidence, a conversation between herself and the witness, Perrin, in the absence of the defendants, where Perrin did not represent the defendants. It was also equally erroneous to refuse to allow the question to the plaintiff below on cross-examination, as to why she did not occupy the homestead.
    The charge of the court that the rights of the plaintiff in the real estate and the proceeds were to be determined by the conditions existing .at the time of the death of the husband, was error. The rights of the plaintiff did not altogether depend on the condition at that time. Her right to a homestead in the land afterwards sold, depended upon conditions existing at that time, as for instance, that it was a homestead and that she was the widow.
    The court said there was no specific agreement shown to waive the homestead and then said that ignorance of fhe right did not alone waive, and it was incumbent upon the defendants to prove an agreement by a preponderance of the evidence. We think this was clearly misleading.
    The right of a widow to a homestead in the lands of her deceased husband is conferred by Secs. 5437 and 6155 Rev. Stat.
    We think a fair construction of the statutes means that there must have been a homestead occupied by the family at the time of the death of the husband, owned by him. There being such, the widow waa entitled to have set off to her that homestead, and it should remain as and for a homestead as long as she resided, thereon and remained unmarried, but by the language of the statute, she could remove and therefore abandon, and she could marry and thereby forfeit the homestead.
    This was a title to the property, but was nothing more than a conditional estate for life. 15 Am. & Eng. Enc. Law (2 ed.) 697; Merritt v. Merritt, 97 Ill. 243; Brokaw v. Ogle, 170 Ill. 115 [48 N. E. Rep. 394]; Jones v. Gilbert, 135 Ill. 27 [25 N. E. Rep.-566]; Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432]; Stevens v. Stevens, 50 Iowa 491.
    The only right a widow has to $500 out of the proceeds of the sale of the family homestead is conferred by Sec. 5437 Rev. Stat. It comes alone under its provisions. Wolverton v. Paddock, 2 Circ. Dec. 279 (3 R. 488); Bliss v. Fuhrman, 3 Circ. Dec. 416 (6 R. 203).
    By statute a widow may lose ber homestead in Ohio by remarriage, and it has been hold that remarriage would end it, even in absence of statute in some states. Boland, Estate of, 43 Cal. 640; Still, In re Estate of, 117 Cal. 509 [49 Pac. Rep. 463] ; Dei v. Habel, 41 Mich. 88; Anderson v. Coburn, 27 Wis. 558; Ferguson v. Mason, 60 Wis. 377 [19 N. W. Rep. 420].
    A person entitled to a homestead may waive it by failing to assert it when he ought, and this rule applies as well to a widow as to any other person. Wright v. Dunning, 46 Ill. 271 [92 Am. Dec. 257]; Hemenway v. Wood, 53 Iowa 21 [3 N. W. Rep. 794],
    And a widow may abandon her homestead or her right to assert a claim for a homestead. Buck v. Conlogue, 49 Ill. 391; McComb v. Thompson, 42 Ohio St. 139, 147; Niehaus v. Faul, 43 Ohio St. 63, 68 [1 N. E. Rep. 87] ; Shepard v. Brewer, 65 Ill. 383; Peebles v. Bunting, 103 Iowa 489 [73 N. W. Rep. 882]; Paul v. Paul, 136 Mass. 286; Abbott v. Abbott, 97 Mass. 136; Pratt v. Pratt, 161 Mass. 276 [37 N. E. Rep. 435]; Hicks v. Pepper, 57 Tenn. 42; 15 Am. & Eng. Enc. Law (2 ed.) 659; Mack v. Heiss, 90 Mo. 578 [3 S. W,. Rep. 80]; Grothaus v. DeLopez, 57 Tex. 670; Bates v. Bates, 97 Mass. 392.
    A surviving husband or wife cannot enjoy both dower and homestead at the same time' in the same premises, and an election to take the one will bar the other. Stevens v. Stevens, 50 Iowa 491; Butterfield v. Wicks, 44 Iowa 310; Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432]; Merritt v. Merritt, 97 Ill. 243; Bryan v. Rhoades, 96 Mo. 485 [10 S. W. Rep. 53] ; Chaplain v.-Sawyer, 35 Yt. 286.
    The decision of Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426), referred to by defendant in error is not in point.
    Richards & Heffner, for defendant in error:
    Had Mrs. Moore and the children not provided for this lien it would have been the duty of the administrator to apply for an order for the sale of the homestead. Section 6136 Rev. Stat.
    Section 5437 gives the widow the right to make this sale, and yet preserve all her rights. It allows a private sale, saving the costs of an administrator’s sale or a foreclosure. It would be a stiff doctrine to hold that the widow with the heir could not settle the suit by a private sale, and yet the widow preserve her rights; that an action would lie to foreclosure. See Bigelow v. Renker, 25 Ohio St. 542, 546.
    If Mrs. Moore had been fortunate enough to have the money, she might have redeemed the homestead, and she would then have been subrogated to the rights of the mortgagee. 3 Pomeroy, Eq. Jurisp. ,Sec. 1212; Sheldon, Subrogation See. 51.
    Under the first clause of Sec. 5437 Rev. Stat., though the homestead is sold under a power in a will, yet the widow is entitled to the exemption, notwithstanding that the statute reads expressly that she is entitled to have it set oft to her by the appraisers on a petition to sell. Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426).
    The policy of the courts is to so construe exemption laws as to give them effect if possible and in favor of the homestead right. Conley v. Chilcote, 25 Ohio St. 320; Chileote v. Conley, 36 Ohio St. 545; Sears v. Hanks, 14 Ohio St. 298, 300, 301 [84 Am. Dec. 378],
    The widow is allowed both dower and $500 in lieu of a homestead. We see no provision in the latter clause of See. 5437 Rev. Stat., that the widow shall elect to take $500 or her dower. Section 5443 Rev. Stat., moreover, clinches her right. Section 6155 Rev. Stat. prescribes in detail the duties of appraisers after the court finds it necessary that the executor or administrator shall sell real estate to pay debts. They shall set off both homestead and dower and the sale shall be subject to both. It is of little consequence what the courts of Missouri, Illinois and Iowa have held upon a widow’s right in those states. Their decisions were based upon their own statute law, especially the Iowa cases. See Meyer v. Meyer, 23 Iowa 359 [92 Am. Dec. 432], cited by plaintiff in error.
    Our statutes harmonize to give the widow both dower and homestead, and cannot be harmonized in any other way.
    Chapter 4, Title 2, provides for administering estates of insolvents. Section 6350 Rev. Stat: provides for converting the real estate of the insolvent into money. Section 6351 Rev. Stat. provides for dower without any reference at all to homestead.
    Nowhere in the laws of Ohio is the widow required to elect between dower and homestead. . Hutchings v. Davis, 68 Ohio St. 160.
    There can be no election between rights conferred by statute unless the statute provides for it. In that case the widow was allowed money in lieu of dower and also a distributive share of the proceeds of sale of real estate, which in accordance with the will was converted into cash and mingled with the proceeds of the personalty.
    The practice in this state has been universal by probate and common pleas courts to allow both homestead and dower without one being diminished by the other. Wanzer v. Widow, 2 Re. 323 (2 W. L. M. 426). Judge Lawrence so held in most positive terms.
    
      In other states where the statutes are as liberal as ours the courts have allowed both. Monk v. Capen, 87 Mass. (5 Allen) 146; Mercier v. Chace, 93 Mass. (11 Allen) 194.
    Lord Bacon said, “The law favoreth three things: First, life; •second, liberty; third, dower. ’'' Had he lived in our day and in America he would have added, “homestead.”
    
      
       Affirmed by Supreme Court, without report, Bretz v. Moore, 69 O. S. 574..
    
   PARKER, J.

This is a proceeding brought to obtain a reversal of the judgment of the court of common pleas.

We shall not undertake to state or follow all the ramifications of the various questions that have been suggested and argued, for we think that the real controlling question can be very simply stated and comes within a very narrow limit.

Loia A. Moore, a widow, was entitled to a homestead out of certain premises of which her husband died seized, under Sec. 5437 Rev. 'Stat., and it appears that these premises were mortgaged and that the mortgage was one which precluded the allowance of a homestead, that is to say, that no homestead could be allowed as against the claim of the mortgage, the husband and wife, afterwards the widow, having both signed the mortgage. The husband beside leaving his widow, left certain children, who were all of age, and it fairly appears from the record that all the persons interested in this property as heirs — these children and the widow — foresaw that they would not be able to discharge this debt and lien except by the sale of the property, and therefore they agreed together that they would sell the premises and pay all encumbrances; and thinking that the administrator of the estate of the deceased husband and father would be entitled to hold and handle the proceeds of such sale and therefrom discharge any indebtedness of the decedent, they agreed that they would turn over the residue remaining after the discharge of the mortgage debt to the administrator, and in pursuance of this agreement, they proceeded to sell the premises and derived enough from the sale to pay off the mortgage and turn over seven or eight hundred dollars to the administrator, which they did. It turns out that probably the administrator could not have brought these premises to sale, as administrator, because there were no claims against the estate which would have required it. At all events, even if he might have brought it to sale for the mortgage claim (and about that we express no opinion) he was not required to take or use any of these proceeds of the sale that were turned over to him, the mortgage claim being paid directly by the widow and heirs. But they paid over the residue to him and he holds it, and the court of common pleas of Seneca county bas held, and we think correctly, that he never received or held it as administrator, bnt, under the circumstances, he held it as trustee.

Now the widow has asserted her claim to a part of these proceeds, as the value of her dower interest in this property, and that claim, I believe, is not contested. She has also asserted and here asserts her claim to the remainder of the proceeds in lieu of 'a homestead under Sec. 5437 Rev. Stat.

It is contended however, upon behalf of the heirs, that having consented to this arrangement and sale of the premises, she thereby waived her claim to a homestead; that she thereby abandoned her homestead; and that, as a consequence, she also waived and abandoned all right to claim any of the proceeds in lieu of, a homestead.

The contention by counsel for the heirs is, that it is only in cases where the property is brought to sale by the mortgagee or the administrator, or by some process of law, which compels a sale of the premises, that this provision of Sec. 5437 Rev. Stat. relied on by defendant in error, applies, viz., “That in all cases where the homestead has been or shall be sold to pay any lien which precludes the allowance of a homestead, the residue of the proceeds, not exceeding $500, shall be paid to the widow, or in case there be no widow, to the minor child, unmarried, in lieu of a homestead, on her or said minor child’s application, in person or by agent, attorney or guardian,” and that this provision of the statute does not apply to a sale voluntarily made by the heirs and the widow. But we think that a fair and reasonable construction of this statute authorizes an application of these provisions to a case like that at bar; that where the heirs and widow, foreseeing that a sale must be made to satisfy a claim and lien which precludes the allowance of a homestead, agree together that they can probably do better by making a private sale of the premises, and that they will do so, and that they will retain their rights in the proceeds rather than undertake to hold on to the property- and allow the premises to be brought to a forced sale, as between them, it would not lie with either to dispute the equitable rights of the other arising out of such proceeding; that in a case like this, the heirs being of age, and having full knowledge of the situation, and having agreed that the premises should be sold at private sale and having participated in the sale, and agreed that the proceeds should go into the hands of the administrator, and not having required of the widow that she should waive her homestead right, or her right to the proceeds in lieu of a homestead, and it not appearing that she has waived it, but rather that she desired and still desires to retain her right, it should be held that she has not lost such right. Though she has abandoned all claim to bold the premises as a homestead, she has not thereby necessarily abandoned her right under this clause of the statute to hold a part of the proceeds in lieu of a homestead. We think the statute should receive such fair, equitable and liberal construction; that it is the policy of the law to construe these exemption statutes liberally, so as to effect their purpose, and such sale should be held to be within the purview of the statute. It was a sale to pay a lien which precluded the allowance of a homestead. Under the circumstances the heirs cannot be heard to dispute that fact.

The judgment of the court of common pleas being in accordance with these views, will be affirmed.

Hull and Haynes, JJ., concur.  