Muscala v. Wirtjes, 310 N.W.2d 696 (Minn. 1981). · Go Syfert
Muscala v. Wirtjes, 310 N.W.2d 696 (Minn. 1981). Cases Citing This Book View Copy Cite
41 citation events (7 in the last 25 years) across 7 distinct courts.
Strongest positive: In re: Estate of James G. Lindell (minnctapp, 2014-12-29)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (rule) In re: Estate of James G. Lindell (2×) also: Cited "see"
Minn. Ct. App. · 2014 · confidence medium
Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn. 1981) (emphasis added); see also Kramer v. Lamb, 84 Minn. 468 , 469–70, 87 N.W. 1024, 1025 (1901) (discussing the interaction between these two rules).
discussed Cited as authority (rule) In Re the Estate of Eckley
Minn. Ct. App. · 2010 · confidence medium
In contrast, the supreme court later held in Muscala v. Wirtjes that a homeowner’s confinement to a nursing home did not exempt him from section 510.07’s requirement that he file notice if not actually occupying the property, despite the man’s expressed intent and desire to return home. 310 N.W.2d 696, 698 (Minn.1981).
discussed Cited as authority (rule) In Re Holman
Bankr. D. Minn. · 2002 · confidence medium
Id. “[Bjecause Berens had voluntarily left the marital homestead, he does not qualify for an extension of the six-month filing requirement.” Id., citing Eustice v. Jewison, 413 N.W.2d at 118-119 ; Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981).
discussed Cited as authority (rule) In Re Kyllonen
Bankr. D. Minn. · 2001 · confidence medium
See, e.g., In re Priebe, 69 B.R. 100, 103 (Bankr.D.Minn.1987) (criticizing homestead exemption statute as outdated and arbitrary because it fails to recognize that modern-day farmers often farm non-contiguous parcels but nevertheless denying exemption for non-contiguous parcels based on statute’s plain language); Muscala v. Wirtjes, 310 N.W.2d 696, 697-98 (Minn.1981) (“Minn. Stat. § 510.01 (1980) defines a homestead as the house ‘owned and occupied by a debtor as a dwelling place,’ together with a limited amount of surrounding land.”); In re Stenzel, 259 B.R. at 146 (mentioning that…
cited Cited as authority (rule) Anthem Ins. Companies v. Tenet Healthcare Corp.
Ind. · 2000 · confidence medium
Corp., 86 Ill.2d 431 , 66 Ill.Dec. 657 , 427 N.E.2d 1203, 1206-07 (1981); Lincoln v. Seawright, 104 Wis.2d 4 , 310 N.W.2d 696, 699-600 (1981).
examined Cited as authority (rule) Marlyce E. Mueller v. Sheridan J. Buckley (3×) also: Cited "see, e.g."
8th Cir. BAP · 1998 · confidence medium
See Oldewurtel v. Redding (In re 9 § 510.01; see Eustice, 413 N.W.2d at 120 ; Muscala v. Wirtjes, 310 N.W.2d 696, 697-98 (Minn. 1981).
examined Cited as authority (rule) Mueller v. Buckley (In Re Mueller) (3×) also: Cited "see, e.g."
8th Cir. BAP · 1998 · confidence medium
Minnesota law protects a debtor’s homestead from forced sale or seizure, Minn.Stat. § 510.01; 7 see State Bank v. Euerle Farms, Inc., 441 N.W.2d 121, 124 (Minn.Ct.App.1989), review denied (Minn. July 29, 1989), and requires a de minimis showing that a debtor claiming the exemption in a residence, (1) “own and occupy” the house, 8 (2) as his or her “dwelling place,” Minn.Stat. § 510.01; see Eustice, 413 N.W.2d at 120 ; Muscala v. Wirtjes, 310 N.W.2d 696, 697-98 (Minn.1981).
cited Cited as authority (rule) In Re Johnson
Bankr. D. Minn. · 1997 · confidence medium
Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981) (citing First Nat’l Bank of Mankato v. Wilson, 234 Minn. 160 , 47 N.W.2d 764 (1951)).
discussed Cited as authority (rule) In re Thiesse
D. Minnesota · 1994 · confidence medium
Minn.Stat. § 510.07 provides the absolute right to an owner of homestead property to remove from the homestead for any reason up to six months without loss of homestead exemption status. 1 See: Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981), “The statute provides the method whereby homestead status may be retained regardless of the reason for the owner’s nonoccupancy.”; and, Russell v. Speedy, 38 Minn. 303 , 37 N.W. 340, 341 (Minn.1888), “[t]he owner may remove therefrom, and sell and convey ... and we are of the opinion that for the term of six months after removal the right rem…
discussed Cited as authority (rule) In Re: Daniel J. Berens, Debtor, Daniel J. Berens v. Hall, Byers, Hanson, Steil & Weinberger, P.A.
8th Cir. · 1993 · confidence medium
See Eustice v. Jewison, 413 N.W.2d 114, 118-19 (Minn. 1987); Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn. 1981). 8 Under Minn. Stat. § 510.04 (1984), debts against spouses, either individually or jointly, do not attach to the homestead as long as one spouse possesses the homestead exemption.
discussed Cited as authority (rule) In Re: Walter H. Sands Vivian E. Sands, Mark C. Halverson, Trustee State Bank of Butterfield v. Walter H. Sands Vivian E. Sands
8th Cir. · 1992 · confidence medium
Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn. 1981), quoting Clark v. Dewey, 73 N.W. 639, 640 (Minn. 1898). 9 Accordingly, we affirm. 1 The Honorable David S. Doty, United States District Judge for the District of Minnesota 2 The Honorable Dennis D.
discussed Cited as authority (rule) Joy v. Cooperative Oil Ass'n (2×)
Minn. Ct. App. · 1984 · confidence medium
Id. at 698.
discussed Cited "see" Peoples' State Bank v. Quentin B. Stenzel
8th Cir. BAP · 2001 · signal: see · confidence high
See Smoinikar, 200 B.R. at 644 (citing Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn. 1981)). 5 We disagree with the bankruptcy court and hold that occupancy under M.S.A. § 510.01 requires a determination of a legal, not merely factual, right of occupancy and possession.
cited Cited "see" Peoples' State Bank v. Stenzel (In Re Stenzel)
8th Cir. BAP · 2001 · signal: see · confidence high
See Smoinikar, 200 B.R. at 644 (citing Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981)).
discussed Cited "see" In Re Smoinikar
Bankr. D. Minn. · 1996 · signal: see · confidence high
See Muscala v. Wirtjes, 310 N.W.2d 696, 698 (Minn.1981) (holding that homestead exemption was lost when debtor, absent from home for more than six months, failed to file requisite notice with county recorder, regardless of contrary intent).
cited Cited "see" Charles W. Ries, Trustee of the Bankruptcy Estate v. Linda C. Thiesse
8th Cir. · 1995 · signal: see · confidence high
See Muscala v. Wirtjes, 310 N.W.2d 696, 698 (1981). 2 Given this background, we find the bankruptcy court’s ruling unclear in two respects.
discussed Cited "see" In Re Kasden
Bankr. D. Minn. · 1995 · signal: accord · confidence high
Courts have reasonably applied the statute, construing it “not to be understood as meaning that it requires constant personal presence so as to make a man’s residence his prison, or that an enforced temporary leaving of the premises from accidental causes such as fire or flood, or that a temporary absence for purposes of business or pleasure, not amounting to a change of actual residence, would constitute a removal, or ceasing to occupy within the meaning of the statute.” Ouehl v. Peterson, 47 Minn. 13, 16 , 49 N.W. 390 (Minn.1891); Accord Muscala v. Wirties, 310 N.W.2d 696, 698 (Minn.19…
discussed Cited "see" Eustice v. Jewison
Minn. Ct. App. · 1987 · signal: see · confidence high
In Estate of Hoffman , this court upheld the trial court’s denial of the exemption due to lack of notice because “a need for physical care outside of the home is not tantamount to involuntary commitment.” Id.; see Muscala, 310 N.W.2d at 698 .
Retrieving the full opinion text from the archive…
Harriet MUSCALA, Appellant,
v.
Bernice WIRTJES, Personal Representative of the Estate of Edgar H. Karbo, Deceased, Respondent
51333.
Supreme Court of Minnesota.
Oct 9, 1981.
310 N.W.2d 696
Kurzman, Shapiro & Manahan, Marc G. Kurzman and Mary Wertz, Minneapolis, for appellant., David M. Watson, Tyler, for respondent.
Wahl, Scott.
Cited by 23 opinions  |  Published
WAHL, Justice.

This is an appeal by plaintiff Harriet Muscala from an April 9,1980, order of the Lincoln County District Court directing that summary judgment be entered in favor of the defendant. The judgment denied the general claim of Harriet Muscala against the estate of the decedent for funeral expenses, holding that the estate comprised a homestead and was therefore exempt from this claim under Minn.Stat. §§ 510.01, 510.-07 (1980). We reverse.

The facts were stipulated by the parties. Harriet Muscala is the daughter of decedent’s second wife, Selma Karbo. She claims $2,351.50 for burial expenses for her mother, Selma, who predeceased the decedent, Edgar Karbo, by 6 months. Harriet Muscala did not assert a claim during decedent’s lifetime but maintains that she incurred the funeral expenses at Edgar Kar-bo’s request. The defendant denies that this is so.

Edgar H. Karbo and his wife, Selma, moved out of their Arco, Minnesota home in early 1977. Edgar Karbo died on March 2, 1978, at the age of 84. The Arco property was sold for $10,000 by a representative of the estate approximately 6 months after Edgar’s death and more than a year after Edgar Karbo left the house. Informal probate of the estate was closed within a year. The proceeds were distributed to Karbo’s children of majority age.

The circumstances relating to the Karbos’ move from their Arco homestead are as follows. Edgar and Selma moved out of this home and entered the Trevilla Nursing Home in New Brighton, Minnesota. Selma died on September 10, 1977. Edgar then went to the home of his son in Russell, Minnesota until the funeral. After the funeral, Edgar spent 3 weeks at the Ivanhoe Hospital. From the hospital he was sent to Colonial Manor Nursing Home in Balaton, Minnesota. He lived there until his death in March of 1978, approximately 6 months later. During their absence from their home, neither of the Karbos filed notice with the county recorder claiming the Arco property as their homestead pursuant to § 510.07 (1980).

The parties stipulated to the following statement:

The decedent repeatedly expressed a desire to return to and reside in his homestead in Arco, Minnesota. The homestead was unoccupied from the date of decedent’s departure from his homestead to the date of his death. The intent of the decedent is undisputed; however, it is also undisputed that the decedent in the opinion of the family was physically unable to care for himself and reside at his homestead.

Harriet Muscala argues that the Arco house had been abandoned by the Karbos and was therefore not a homestead, the proceeds of the sale of which would be exempt from appellant’s claim. The trial court found no abandonment.

Minn.Stat. § 510.01 (1980) [1] defines a homestead as the house “owned and occu[*698] pied by a debtor as his dwelling place,” together with a limited amount of surrounding land. If property qualifies as a homestead, it is exempt from claims of some creditors. In addition, the proceeds from the sale of a homestead are exempt for a year. Minn.Stat. § 507.07 (1980). [2] The homestead exemption ceases when a person abandons his or her home. Section 510.07 is clear. If the owner of homestead property “shall cease to occupy such homestead for more than six consecutive months he shall be deemed to have abandoned the same unless, within such period, he shall file with the county recorder of the county in which it is situated a notice ⅜ * * claiming the same as his homestead.” While abandonment of a homestead is ordinarily a question of actual cessation of occupancy plus intent, we have held, as recently as 1951, that the addition of the legislature of the 6-month vacancy rule means that the homestead exemption is lost after 6 months unless the person has filed, no matter what the person’s intention. First National Bank of Mankato v. Wilson, 234 Minn. 160, 47 N.W.2d 764 (1951). The statute provides the method whereby homestead status may be retained regardless of the reason for the owner’s nonoccupancy. A notice must be filed within 6 months.

In a limited class of cases, we have held and implied that the 6-month cut-off will not be strictly applied. Millett v. Pearson, 143 Minn. 187, 173 N.W. 411 (1919); Clark v. Dewey, 71 Minn. 108, 73 N.W. 639 (1898). In Millett, we held that a person in jail on a charge of murder was under a legal disability, and, since such a person was unable to change residence, a homestead exemption would not be lost despite the passing of 6 months. In Clark, Justice Mitchell made the following often-quoted observation about the need for a reasonable construction of the occupation requirement:

Actual occupancy, as distinguished from mere possession (which may be constructive), is the prominent idea associated with the word “homestead.” Of course, the term “actual occupancy” must receive a reasonable construction, and is not to be understood as requiring constant personal presence, so as to make a man’s residence his prison, or that a temporary absence, enforced by some casualty, or for purposes of business or pleasure would constitute a removal, ceasing to occupy, or an abandonment. Quehl v. Peterson, 47 Minn. 13, 49 N.W. 390. But even with this reasonable construction there must be actual and continued occupation of and residence upon the premises in order to constitute a homestead, except so far as occupancy is expressly dispensed with by the statute.

71 Minn. 110, 73 N.W. 639-40.

While we find that Edgar Karbo’s case points up the need of the elderly for access to competent legal information and advice with regard to their rights, we do not find, on the facts before us, the legal disability or temporary absence which would justify an exception from the 6-month cut-off. Intent does not grant a continuing exemption from the statute. Edgar Karbo’s homestead exemption ceased to exist when 6 months of nonoccupancy expired without the filing of a notice. Harriet Muscala should recover her claim. We need not reach the other issues raised by the appeal.

Reversed.

SCOTT, J., took no part in the consideration or decision of this case.
1

. Minn.Stat. § 510.01 (1980) reads:

The house owned and occupied by a debtor as his dwelling place, together with the land upon which it is situated to the amount hereinafter limited and defined, shall constitute the homestead of such debtor and his family, and be exempt from seizure or sale under legal process on account of any debt not lawfully charged thereon in writing, except such as are incurred for work or materials furnished in the construction, repair, or improvement of such[*698] homestead, or for services performed by laborers or servants.
2

. Minn.Stat. § 510.07 (1980) reads:

The owner may sell and convey the homestead without subjecting it, or the proceeds of such sale for the period of one year after sale, to any judgment or debt from which it was exempt in his hands. He may remove therefrom without affecting such exemption, if he do not thereby abandon the same as his place of abode. If he shall cease to occupy such homestead for more than six consecutive months he shall be deemed to have abandoned the same unless, within such period, he shall file with the county recorder of the county in which it is situated a notice, executed, witnessed, and acknowledged as in the case of a deed, describing the premises and claiming the same as his homestead. In no case shall the exemption continue more than five years after such filing, unless during some part of the term the premises shall have been occupied as the actual dwelling place of the debtor or his family.