The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1885-06-28
DooLEY VS.. sTRINGHAM.
Judge Boremon's Opinion in the
Appeal Case.

In Che Supreme Court of the Territory 0
Utah. June Term, 1885. fss
John E. Dooley, Respondent,
VS..
Susan A. Stringham, Appellant.
Opinion of the Court. Boremal
: Justice.
In 1871, Bryant Stringham die own
ing homestead consisting of two lot,
Of ground, in Salt Lake City. and leav
ing widow, Susan A. Stringham, the
appellant, and eight children. Some Of
the children are still minors, living with
their mother. The widow and childrt n
were residing on the homestead at the
death of decedent, and she still so re-
sides. In 1879 the Probate Court set of
the homestead to the widow for life and
to her said children III fee. In 1889
four of the adult children sold and con-
veyed to respondent, all their interests
consisting of the undivided half of said
homestead, in reversion. In 1884 the
appellant began tearing d wn an adobe
dwelling house situate on the home
stead. with the protested object of re-
placing the same with better building,
and alleging the adobe dwelling as un
mt for use. The respondent sued out
an injunction to restrain the widow
from destroying the house then upon
the lots. AT the time of answering. the
appellant filed a cross-complaint,
alleging that respondent had no title or
interest and that his claim was cloud
upon her titles and she prayed that re-
Espondent might be enioined from claim
ing any interest or title to said property
and she filed her motion also to dissolve
the injunction granted in favor OF re-
spondent. III
10 the cross-complaint the respond
ent demurred, alleging as ground of
demurrer that the cross-complaint did
not state facts sufficient to constitute
cause of action. Upon the hearing of
the motion and demurrer, the court
overruled the motion to dissolve the in
junction and sustained the demurrer to
the croSs-complaint. From the order
refusing to dissolve the injunction and
from the order sustaining the demurrer
to the cross-compIaint, the appellant
has brought the case to this court.
The appellant claims the absolute fee
simple title to the lots, and that if she
be not entitled to that, but only has
life estate yet. that she has the right to
tear down the building.
AT the time of the death of Bryant
Stringham, the statutes incorporated
into the compiled laws" as bracket
sections (666) and $3.50 were in force.
The first of these sections reads as fol-
lows:
"(666). Section IA. When the de-
ceased leaves wife or family, no prop
erty exempt by law from execution,
shall be considered assets. or admins
tered upon, but shall be held for the ex-
elusive benefit of the wife or family, and
shall not be liable for any debts against
the estate"
And the other section reads as fol
lows;
1870. Section "a. The homestead
occupied by the wife, or any portion of |
the family of the deceased at the time
of his death. shall in all cases be held |
free to the use of the wife and family !
of the deceased, and shall not be liable |
tate, and if there be other property
remaining after the liabilities of the |
estate are iquidated, then it shall, in the |
absence of other arrangements by will, |
descend in equal shares to his children |
or their heirs, one share to such heirs |
through the mother of such children if |
she shall survive him, during her |
natural life, or during her womanhood;
or if he has had more than one wife,
who either died or survived in lawful |
wedlock, it shall be equally divided be-
tween the living and the heirs of those
who are dead, such heirs taking by |
right Of representation"
If the two sections were held to be in
conflict, the latter would take preced-
ence, as.it is specific, and the prior one.
is general in character. But we are I'M
able to see wherein there is any conflict
so far as the question in dispute is con-
cerned. The prior of the two sections,
if strictly construed, would probably be
held to mean that when man dies
leaving wife and no children, the ex-
empt property should go to the wife
absolutely, and if he dies leaving no
wife vet leaves family, the exempt
property should go to them absolutely,
and that it made no provision for
the case of man leaving both wife
and children. Yet we are not inclined
to this strict construction but think a
more favorable view should be taken of
the section. The whole of the Act of
March 3. 1882 from which these two
sections were taken, is crude and indefi-
nite. In another section of the same
Act land now found in the Compiled
Laws" bracket section 678) it is provided
that lin all cases where the deceased
caves wife, the inheritance shall not
pass therefrom so long as the name OF
.he dead shall be perpetuated thereon"
This section if it means anything, pro-
rides that the wife shall be allowed to
-etain some inheritance" as long as
The remained a widow, and the word
IN this connection would
apply more appropriately to the home
Itead than to anything else. The ap-
,ellant is a widow and hence under
hese sections 1856 and (679) has pre-
ent estate and interest in the lots, if
lection (666) be held to apply to real
state. Sections 1885,, (676) and (77S)
hould be construed together and be
made to stand, if possible. There
eems to be no way to enable them to
tand together except by this libefal ,
construction we put upon them. and