261 N.W. 759 | N.D. | 1935
Axel Robert Anderson, a resident of North Dakota, *722 died in December, 1931, testate. His wife and daughter, the plaintiffs herein, survived him. He left considerable property. In his will he made ample bequests to the plaintiffs and provided that after these were satisfied the residue of his estate should go to the appellants. He carried two life insurance policies, both payable to his estate. He made no reference to these policies in his will. The executors collected both of them, the avails aggregating $15,431. The plaintiffs, claiming as heirs, made demand upon the executors to pay this money to them. The appellants made claim to the money as belonging to them as residuary legatees, the bequests to the plaintiffs having been satisfied. The executors hold the money awaiting the outcome of this suit.
The plaintiffs claim as heirs. They predicate this claim on the statute, § 8719, Comp. Laws 1913, as amended. They insist that since the policies in question were payable to the estate and there was no reference to them in the decedent's will, the avails never became a part of the estate but that the plaintiffs, taking by contract and not by descent, are entitled thereto. On the other hand, the appellants insist that under the statute in question the avails of these policies became a part of the estate, that the bequests to the plaintiffs have been satisfied, and that appellants are entitled to these avails as residuary legatees. The plaintiffs sought to vindicate their claim in this action, brought in the district court of Cass county. They set out the facts above stated in their complaint. The appellants demurred on the grounds, first, that the district court was without jurisdiction, the matter being one of which the county court had exclusive jurisdiction under section 111 of the Constitution and, second, that the complaint failed to state facts constituting a cause of action. The trial court overruled the demurrer. From this order appellants perfected the instant appeal.
We will consider first the contention made by the appellants that the avails of the insurance policies in question became a part of the estate of the decedent and that therefore they are entitled to take the same as residuary legatees. If this contention be ruled against them their first contention that the district court has no jurisdiction in the premises must likewise fall, for, if these avails be not a part of the residuary estate certainly the district court and not the probate court has jurisdiction of the controversy.
The instant case is not the first that has arisen under § 8719. *723
Beginning with the case of Finn v. Walsh,
The substantial differences between the statute as amended by chapter 149 and the present statute above quoted arise by reason of the inclusion in the latter of the words "the deceased" and "or hereafter" above italicized, and the final sentence of the statute also italicized.
We held in Finn v. Walsh,
The appellants insist, however, that though this holding was warranted by the provisions of § 8719, Comp. Laws 1913, the statute was so altered by the 1927 amendment and the 1929 re-enactment as to render the construction thus given the original statute inapplicable; and that all the cases passing upon the question since these later enactments took effect have dealt either with cases antedating the enactments or have disregarded or overlooked them; that there could have been no reason for their passage other than to amend the original statute so as to make the avails of insurance policies parts of the estate of a decedent subject to the jurisdiction and disposition by the probate court in the same manner as property generally. These same contentions were advanced in the case of Crabtree v. Kelly, ante, 501,
It seems clear that the principal change in the statute made by chapter 225, Sess. Laws 1927, was made with the intent to settle the questions as to whether and in what manner the avails of "old line" policies payable to the personal representative of a deceased, his heirs or estate, could be disposed of by will. It is to be noted also that the provisions of this statute as respecting the right to transfer by will or contract are made applicable only to "policies or contracts heretofore made." These questions had never been passed upon by this court until they were directly raised in the case of Jorgensen v. DeViney,
Now let us consider chapter 149, Sess. Laws 1929, the re-enacted statute. As heretofore pointed out the substantial differences between this statute and chapter 225, arise by reason of the words "the deceased;" by the words "or hereafter;" and by the concluding sentence of the statute. The opinion in the case of Cohen v. Ferguson,
But there is another forceful reason why we are impelled to the above holding. The effect of the appellants' contention is that by virtue of chapters 225, Sess. Laws 1927 and 149, Sess. Laws 1929, § 8719 became purely an exemption statute: that its only effect was to exempt the avails of policies of the character described therein from debts of the decedent. While this court has never passed upon the question as to whether a statute having this effect would be within the power of the legislature to enact, nevertheless some doubt had been cast upon this matter by what was said in the dissenting opinion of Judge Robinson in the case of Farmers State Bank v. Smith,
The construction placed upon § 8719 in Finn v. Walsh,
It is so ordered.
BURKE, Ch. J., and BURR and CHRISTIANSON, JJ., concur.
MORRIS, J., not participating. *727