Moninger & Ringland v. Ramsey

Rothrock, Ch. J.

*369

x. -homestead: antecedent debts.

*368 Counsel for the parties, by agreement, *369 submit tbe question for determination in this court, in tbe following clear and concise form: “Does the borne- . . stead descend to the issue of the owner, without regard to the rights of creditors, when claims are older than the homestead acquisition, and who could have subjected it to the payment of their claims if the owner had survived and held it ?”

Section 1992 of the Code, so far as applicable to the question, is in these words: “The homestead may be sold on execution for debts contracted prior to the purchase thereof,

Section 2008 provides that “ * '* * * the homestead descends to the issue of either husband or wife, according to the rules of descent, unless otherwise directed by will, and is to be held by such issue exempt from any antecedent debts of their parents, or their own.”

E. C. Wood was a widow, and the devise to her children did not divert the homestead. No other disposition of the property was made by the will than that made by the law of descents.

The question presented must be determined precisely as if no will had been made, and involves the construction of the sections of the Code above quoted.

Construing the two sections together, we are of opinion that the antecedent debts of the parents referred to in section 2008 include only the ordinary, general indebtedness of the estate, and do not embrace debts which were contracted before the homestead was acquired. Any other construction would limit the liability of the homestead for debts, as provided in section 1992, to such as may have been reduced to judgment and are in course of collection by execution levied upon the homestead /during the life of the parent.

We do not think this is a fair construction of that section. The homestead is not primarily liable for debts contracted prior to its purchase. It is only liable to be sold for such debts “to supply' the deficiency remaining after exhausting *370 the other property of the debtor liable to execution.” The phrase, “the' homestead may be sold on execution for debts contracted prior to the purchase thereof,” found inf section 1992, is a form of expression used to declare the homestead! liable for such debts, in so far as may be necessary to pay the same after exhausting the other property. The general provision in section 1988 exempts the homestead from “judicial sale.” The exception contained in section 1992 subjects the homestead to judicial sale on execution in the contingency therein named. There is nothing in this section limiting the time of the collection of the debts for which the: homestead may be seized. If liable to be seized, it cannot be said, from the language employed, that it must be leviecl upon prior to the death of the owner.

We are required to construe these sections so bóth will' stand, if that can be done; and while some of us are not free from doubt, we think that section 2008 must be understood to provide that the heir holds the property free froni the debts of the ancestor which, in his life, could not have been enforced against it.

Affirmed.