Sec. 934. Property of decedent to be delivered to family at once; the homestead. Upon the death of either husband or wife, the survivor may continue to possess or occupy the whole homestead until it is otherwise disposed of according to law; and upon the death of the husband and wife, the children may continue to possess and occupy the whole homestead until the youngest child becomes of age.20 This statutory provision does not entitle any single survivor of the family to the possession of the property and homestead unless such survivor is head of the family.21 Sec. 935. Additional allotment to widow and children. In addition to the property mentioned in the preceding paragraph there shall also be allowed and set apart to the surviving wife or husband, or minor child or children of the decedent, all such personal property or money as is exempt by law from levy, sale on execution, or other final process from any court, to be with the homestead, possessed and used by them; and the executor or administrator, must make and return a separate and distinct inventory thereof, in the same manner as required for the property mentioned in the preceding paragraph, and no such property shall be liable for any prior debts or claims against the decedent, except where there are no assets thereunto available for the payment of the necessary expenses for the last illness, funeral charges and expenses of administration.22 Am. St. (Ala.) 44; Hodges v. Winston, 36 Am. St. 241; Martin v. Harrington, 73 Vt. 193, 87 Am. St. 704; Hart v. Church, 126 Cal. 471; 77 Am. St. 195, 58 Pac. 910; Thompson v. New England, 110 Ala. 400, 55 Am. St. 29; Shields v. Bush, 189 Ill. 534, 82 Am. St. 474; North v. Lamer, 84 Am. St. 635; Rogers v. Day, 15 Mich. 664, 69 Am. St. 393; O'Brien v. Welty, 94 Tex. 148, 86 Am. St. 829. 20 Snyder, 5,265; Wilson, 1,607. 21 Betts v. Mills, 8 Okla. 351, 58 Pac. 957. 22 Snyder, 5,266; Wilson, 1,608. Sec. 936. Selection of the homestead. If no homestead has been selected, marked out, platted and recorded, as provided by the homestead law, the judge of the county court must cause the same to be done according to the provisions of said law.23 Sec. 937. Homestead exempt from debt or liability. The homestead is not subject to the payment of any debt. or liability contracted by or existing against the husband and wife, or either of them, previous to or at the time of the death of said husband or wife, except as provided in the law relating to homesteads.24 Sec. 938. Property belonging to single person exempt, when. The following property shall be reserved to persons who are not heads of a family exempt from attachment, execution and every other species of forced sale; except for liens given by the owners: 1. A lot, or lo's, in a cemetery held for the purpose of sepulture. 2. All wearing apparel. 3. All tools, apparatus and books belonging to any trade or profession. 4. One horse, bridle and saddle, or one yoke of oxen. 5. Current wages for personal services.25 Sec. 939. Homestead exemptions shall not apply, when. The exemption of the homestead provided for in this chapter, shall not apply where the debt is due: 1. For the purchase money of such homestead or a part of such purchase money. 2. For taxes due thereon.26 23 Snyder, 5,267; Wilson, 1,609. 24 Snyder, 5,258; Wilson, 1,610. 25 Snyder, 3,348; Wilson, 2,987. 28 Snyder, 3,349; Wilson, 2,988. Sec. 940. Personal property not exempt, when. None of the personal property mentioned in this chapter shall be exempt from attachment or execution for any wages of any clerk, laborer or servant.27 Sec. 941. Pension money exempt, when. There shall also be exempt from levy and sale upon execution or attachment, to every resident of this State who became disabled in the service of the United States as a soldier, sailor or marine, all pension money hereafter received by such soldier, sailor or marine.28 Sec. 942. Adult heir cannot partition homestead occupied by the wife and family. It has been held that when the homestead is occupied by the wife and family as a homestead, an adult heir cannot have the same partitioned.* Sec. 943. Procedure to sell the homestead of insane husband or wife. In case of a homestead, if either the husband or wife shall become hopelessly insane, upon application of the husband or wife not insane, to the district court of the county in which the homestead is situated, and upon due proof of such insanity, the court may make an order permitting the husband or wife not insane to sell and convey, or mortgage such homestead.29 Sec. 944. The petition in such case. The applicant under the provisions of this chapter, shall present and file in the court, a verified petition setting forth the name and age of the insane husband or wife; a descrip 27 Snyder, 3,350; Wilson, 2,989. 96 Pac. 608; Miller v. Hassman, 103 Pac. 377. 29 Snyder, 3,352; Wilson, 2,991. tion of the premises; the county in which it is situated; and such facts in addition to that of the insanity of the husband or wife relating to the circumstances and necessities of the applicant, and his or her family, as he or she may rely upon in support of the petition." 30 Sec. 945. Notice to be served and upon whom. At least thirty days before the hearing of the petition, the applicant, or his or her attorney, shall serve a copy of such upon the nearest male relative of such insane husband or wife, residing in this State, and in case there be no such male relative known to the applicant, a copy of such petition shall be served on the county attorney of the county in which such homestead is situated; and it is hereby made the duty of such county attorney upon being served with a copy of such petition, to appear in court, and see that such application is made in good faith and that the proceedings thereon are fairly conducted.31 Sec. 946. Order of court authorizing sale. If the court shall make an order authorizing the sale of the homestead as herein above provided, the same is required to be entered upon the minutes of the court, and thereafter the sale, conveyance or mortgage made in pursuance of such order shall be as valid and effectual as if the property affected thereby was the absolute property in fee simple of the person making such sale, conveyance or mortgage.32 Sec. 947. Form for petition for sale of homestead of insane husband or wife. PETITION. Comes now the plaintiff and alleges that she is the wife of and that defendant, is her husband, who is years of age and is hopelessly insane; that her said husband is seized of an estate in fee simple in and to the following described real estate in County, State of Oklahoma, to-wit: (Here describe it), which is the homestead of plaintiff and defendant; and that plaintiff is unable to care for said land which is a farm under cultivation, and she has no means for the support of herself and children, all of whom are of tender years, and all of whom are the children of plaintiff and defendant. WHEREFORE, plaintiff prays that she may be authorized to sell said real estate, to-wit: (Here describe real estate again), either at public or private sale, either with or without appraisement, and make and execute deeds to the purchaser thereof, as the court may deem beneficial, and for such other and further orders as the court may deem wise and proper. State of Oklahoma, County, ss.: Attorney for Plaintiff. being first duly sworn, says that she is the plaintiff in the above action, and that the facts stated and allegations contained in the above and foregoing petition are true. Sworn to before me and subscribed in my presence this day of 19 Notary Public, My commission expires County, Oklahoma. Sec. 948. Form for order for hearing petition. |