
    In re BEDFORD’S ESTATE. COMMERCIAL NAT. BANK v. BEDFORD et al.
    No. 1881.
    Decided April 9, 1908
    (95 Pac. 518).
    1. Homestead — Allowance—Increase in Value — Effect—Conclusiveness of Allotment. Revised Statutes 1898, sec. 2829, provides that a homestead of land and appurtenances not exceeding the sum of $2,000, and $250 additional for each minor child, shall be wholly exempt from the payment of debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, to be set apart on petition and notice at any time after the return of the inventory. Held that, where real estate was set apart as a'homestead .to the surviving wife and a minor child, it became theirs absolutely, subject only to the valid liens or mortgages with which it might be incumbered, and the estate was not subject to be reopened and further administered because at a subsequent time the value of the property set aside exceeded the limit of the statutory homestead exemption.
    2. Same — “Absolute.” The word “absolute,” as used in Revised Statutes 1898, sec. 2829, providing for the setting apart of a homestead as the absolute property of the surviving husband or wife and minor children, means complete, final, perfect, unconditional, unrestricted, not relative, not limited, independent of anything extraneous; and in the sense of complete, and not limited, it distinguishes an estate in fee from an estate in remainder, and characterizes a pure estate, unmixed and unconnected with any peculiarities or qualifications; a naked estate, freed from any qualifications and restrictions in the donee.
    Appeal from District Court, Second.District; J. A. Howell, Judge.
    
      Petition by tbe Commercial National Bank against Emelia 0. Bedford and others to re-open tbe probate proceedings in tbe matter of tbe estate of C. A. Bedford, deceased. From a judgment for defendants, plaintiff appeals.
    AuEIRMED.
    
      A. B. Heywood for appellant.
    
      Valentine Gideon for respondents.
   McOABTY, 0. J.

0. A. Bedford died January 9, 1898, leaving a widow and one minor son. At tbe time of bis death Bedford was engaged in tbe hardware business at Ogden, Utah. Tbe stock of hardware, together with certain real property situated in Weber county, constituted bis entire estate. Upon tbe real estate, which was used by Bedford and bis family as a homestead, was a mortgage in favor of tbe Commercial National Bank of Ogden, appellant herein. Tbe estate was duly probated, and tbe stock of hardware appraised at $2,530' and tbe real estate at $1,900. Tbe stock of hardware was subsequently re-appraised and sold for $1,301.45. Tbe money received for tbe hardware was used in paying off tbe mortgage referred to, and in paying the expenses of probating tbe estate. After notice to creditors bad been duly given, a large number of claims against the estate were duly presented, approved, and allowed. Among the claims thus presented was one for $500 in favor of the appellant. None of these claims were ever paid. Subsequent to tbe filing of the inventory and appraisement, tbe widow, Emelia O. Bedford, filed a petition praying that tbe real estate be set apart to her and her minor son as a homestead. Notice was duly given and a bearing bad upon tbe petition. The áppellant herein appeared by its counsel at said bearing and opposed tbe granting of tbe petition. On June 28, 1898, tbe district court made an order setting apart tbe real property to Emelia 0. Bedford and her minor son, Clayton 0. Bedford, as a homestead under section 2829, Rev. St. 1898. On June 29, 1898, the executors filed their final account in said cause, which, after due notice thereof had been given, was, by the court, allowed and settled; and thereafter, on or about August 3, 1898, the court made and entered an order discharging the executors from further administering upon the estate, thereby bringing said proceedings to a close. No property has since been discovered belonging to the estate other than the stock of hardware and the real estate mentioned; and no appeal has ever been taken from any of the orders made or from the decree of final distribution in said proceedings; nor have any of said orders been vacated, or in any manner modified or disturbed. About the month of Hay, 1901, the widow, Emelia 0. Bedford, sold the land theretofore set apart as a homestead for $4,300. The sale of the minor's interest was authorized by an order of court under guardianship^ proceedings wherein the said Emelia 0. Bedford was named as guardian. On April 10, 1907, appellant filed its petition in the district court of Weber county, asking that the probate proceedings in the matter of the estate of 0. A. Bedford, deceased, be reopened on the ground that since the discharge of the executors additional assets belonging to said estate had been discovered, and that the same had come into the hands of the widow, Emelia 0. Bedford. To this petition an answer was filed by the widow for herself, and as guardian for the minor child. A hearing was had on the petition and the answer filed thereto, and the court found that no property had been discovered belonging to the estate except what had been administered, and dismissed the petition. From the order and decree dismissing this petition, this appeal is prosecuted.

It is contended on behalf of appellant that the decree of the court setting apart the real property as a homestead for the widow and minor child did not invest them with the title thereto, but limited their interest therein to $2,250, the amount of the exemption provided for in section 2829, Eev. St. 1898, for a surviving widow and one minor child. In other words, it seems to be the theory of counsel for appellant that the decree only gave the widow and minor child the right to occupy the property as a homestead until such time as its value might be greater than the homestead exemption, and if at any time the value of the homestead should exceed the sum of $2,250 the estate should be reopened' and further administered, and thé propery sold, and the proceeds in excess of $2,250, or so much thereof as might be necessary, applied to the payment of the claims which had been presented to and approved by the executors and allowed by the court. We think this contention is untenable and entirely without merit. Section 2829, Rev. St. 1898, so far as material here, provides that

“A homestead consisting of land and appurtenances not exceeding the sum of two thousand dollars, and two hundred and fifty dollars additional for each minor child . . . shall be wholly exempt from the payment of the debts of the decedent and shall be the absolute property of the surviving husband or wife and minor children . . . to be set apart on petition and notice at any time after the return of the inventory.”

The word “absolute” as here used has a well-defined meaning.

“ ‘Absolute’ means complete, unconditional, not relative, not limited, independent of anything extraneous. In the sense of ‘complete, not limited,’ distinguishes an estate in fee from an estate in remainder . . . Characterizes a pure estate, unmixed and unconnected with any peculiarities or qualifications; a naked estate, freed from any qualification and restriction, in the donee.” (Anderson’s Diet, of Law, 8.)

In Rapalje & Lawrence’s Law Dictionary, the word is construed to mean: “Complete, final, perfect, unconditional, unrestricted; as an unconditional conveyance; an estate without condition or qualification.” Eor further illustrations, see 1 Words & Phrases, 42-44; Johnson’s Adm’r v. Johnson, 32 Ala. 640-642.

It therefore follows that the statute in this case is susceptible of but one construction, namely, that when real property is set apart as a homestead to- the surviving wife or husband and minor children, as provided in section 2829, Rev. St. 1898, it becomes theirs absolutely, subject only to the valid liens or mortgages, if any, with which it may be incumbered. In other words, they are invested with whatever title the deceased had to the property at the time of his death. This court in effect so held in the case of Syndergaard v. Marx, 31 Utah 490, 88 Pac. 616.

The judgment is affirmed, with costs.

STRAUP and FRICK, JJ., concur;  