193 P. 1114 | Mont. | 1920
delivered the opinion of the court.
Henry Bruhns, a resident of California, died in that state intestate in the year 1914, leaving surviving a widow, this respondent, a daughter, and four sons, appellants herein. At
Respondent filed her objections to such report on the ground that the order of the California court in setting aside all of the property in that state to her was made in accordance with the laws of that state and is conclusive on all the heirs of the deceased, and she asserts her right to receive one-third of the residue of the Montana property, regardless of the fact that all of the California property was awarded to her.
Copies of the inventory of the property, decree of distribution and final discharge of the administrator in California are annexed to the final report. In the inventory are included sundry items of real and personal property, of the appraised value of $1,468.82. The inventory contains the recital: “The estate mentioned in the ' foregoing inventory is community property.” The decree of distribution recites that the net value of the estate is less than $1,500, “that the said surviving widow does not have a maintenance derived from her own property equal to the said estate of said deceased,” and then awards to her the entire estate in California.
We ‘are in effect asked to hold that the proceedings in California in awarding the property to the widow were under statutory provisions similar to those found in our section 7513, Revised Codes; the California section being section 1469 of the Code of Civil Procedure.
The position of appellant is that the provision found in each of the above statutes for summary disposition of estates of intestates when “it appears that the value of the whole estate does not exceed fifteen hundred dollars,” means the whole estate wherever situated, and therefore that the value of the “whole estate” exceeds $1,500, in consequence of which it follows that the California decree was erroneous, and that in the proceedings here appellants should be allowed to have deducted from the widow’s distributive share of the Montana property a sum sufficient to enable the sons and daughter of the deceased to obtain, so far as the proceeds of the estate will permit, their two-thirds interest in the value of the properties in the two states.
We do not deem it necessary to cite authorities to the effect
So far as appears from the record, we do not learn that the children of deceased participated in the California proceedings, nor that any reference was made to the Montana lands, nor that any appeal has been taken from any of the orders of that court, and we assume that the same are in full force and effect.
While it may be that the decree in California was made under the provisions of the statute above referred to (though
But, conceding that the decree was made under the statute referred to by appellants, we know of no method of attacking
We are not unmindful of the rules relating to ancillary administration in cases where property of a decedent exists in two or more states. But appellants assert, and respondent concedes, that the Montana proceedings are not intended as ancillary to those in California, and no attempt is made to bring the ease within the rules governing such proceedings, and we therefore decide the appeal upon the contentions urged by the parties.
The decree was made in accordance with the provisions of our statute, no error appearing except as to the omission, in the decree of the name of Paul E. Bruhns as one of the sons and heirs of deceased. The cause is therefore remanded to the district court, with direction to modify the decree of distribution by making proper distribution to said Paul E. Bruhns, and, when so modified, it will stand affirmed.
Modified and affirmed.