125 P. 796 | Idaho | 1912
On about the 12th day of May, 1897, the appellant, Thomas J. Douglas, was a resident of Otero county,
We are called upon in this case to determine whether the property purchased by the appellant on his arrival here from
It will be observed from the foregoing provisions of the statute that the community property law prevails in this state, and it will therefore afford us very little light or information to examine or review authorities coming from states where the common-law rule prevails with reference to the property relations between husband and wife. It seems to be conceded by counsel on both sides of this case that the community property law does not prevail in Colorado, and did not prevail at the time that appellant and his wife acquired this property and departed from the state. Upon the trial of the case the appellant offered to introduce a part of the dissenting opinion in Schuler v. Henry, a Colorado case reported in 42 Colo. 367, 94 Pac. 360, 14 L. R. A., N. S., 1009, which quotes with approval from Denver & R. G. R. Co. v. Young, 30 Colo. 349, 70 Pac. 688, to the effect that the wife acquires no right or interest in any property accumulated by her labor and services in the performance of the usual and ordinary household duties, and that such services belong to the husband. We shall not go into this question, however, because it is conceded that the property accumulated in Colorado by appellant and his wife was the separate property of the appellant there.
Various principles of the law are discussed by respective counsel pro and con as bearing upon this question. It is urged, for instance, that the marital relation in Colorado amounted to a contract and that this property was acquired under that contract, and that to allow the wife an interest in the property in this state would be a violation of the contract
Then we have this situation: That real property is purchased in this state by a married man and during the existence and continuance of the marital relation. The prima facie presumption at once arises under our statute that this property was community property. The man who purchased it, however, and on whom the burden of showing that it is not community property rests, resists and contests the claim that such property is community property, and in doing so, shows that it was purchased wholly with personal property which was at the time his separate and individual estate. In doing so, he finds it necessary to prove the laws of the state in which he accumulated this personal property and from which he brought it in order to show that it was his separate and individual estate and that his wife, the other member of the community, had no interest in such property. It is not, therefore, a question of enforcing and executing a foreign law in this state, but it is merely a question of ascertaining what the foreign law was as one of the probative facts in establishing the ownership of the property.
This question has been considered by a number of courts where the community law prevails. Kraemer v. Kraemer, 52 Cal. 302, is a case where the husband and wife had accumulated property in Illinois which, under the laws of Illinois,
The community property law prevails in Texas, and in Blethen v. Bonner, 30 Tex. Civ. App. 585, 71 S. W. 290, the supreme court had under consideration a similar question where property had been accumulated by husband and wife in Massachusetts where the community property law does not prevail. The husband thereafter removed to Texas and invested the money in property in the latter state. The ques
“It is suggested that this view involves the enforcement of the laws of a sister state by a Texas court in the disposition of property here situated. But not so. We have merely ascertained the law of Massachusetts as a fact in determining the quality or extent of the title to money acquired in Massachusetts by a citizen or citizens of that state, and thereafter brought into and invested in this state. It may seem that Massachusetts, the boasted center of advanced thought, should long since have discarded the rule invoked in behalf of L. B. Blethen, and relegated it to its place among the rejected barbarisms of the common law. But, whatever may be our opposition to the common law in this particular, and the extent of our admiration for the rule of the civil law, so firmly embedded in the hearts and jurisprudence of the Texas people, that the fruits of the joint effort of husband and wife shall be shared equally between them, the power of the people of Massachusetts to determine for themselves the conditions upon which her citizens may acquire and hold property within her own borders must be conceded, and we have no power to alter the status of property fixed and vested by such laws before its introduction into this state. We have simply determined the character of L. B. Blethen’s title to the money with which the lands in controversy were purchased as a fact, and applied thereto the law of Texas. ’ ’
The Blethen case was followed and approved by the court of civil appeals of Texas in Thayer v. Clarke (Tex. Civ. App.), 77 S. W. 1050.
It has been further argued in this case that after an order of sale by the probate court had been made of this property on the theory that it was community property and the sale had been made and confirmed, the judgment became res ad-judicata under the authority of Clark v. Rossier, 10 Ida. 348, 78 Pac. 358, 3 Ann. Cas. 231, and that an action will not thereafter lie in the district court questioning the title conveyed under the probate sale. As was said by this court in Miller v. Mitcham, 21 Ida. 741, 123 Pac. 941, “probate courts have exclusive, original jurisdiction in the settlement of estates of deceased persons, and it is within the jurisdiction of those courts to determine who are the heirs of a deceased person and who is entitled to succeed to the estate and their respective shares and interests therein. The decrees of probate courts are conclusive in such matters. A probate court, however, does not have jurisdiction to determine adverse claims or an adverse title to real estate, except in so far as such questions arise between the heirs or devisees of an estate and are necessary to be determined in the administration of the
In this case it does not appear that appellant is urging his rights to the detriment of anyone who relied upon the probate proceeding, or that the question here involved was litigated or attempted to be litigated in that proceeding. It is true that it was assumed that this was community property at the time of the administration, but no one acquired any right or interest under the probate proceedings which will be adversely affected by this decree so far as appears from the record. We conclude, therefore, that the probate proceedings are not a bar to this action, nor do they estop the appellant here from asserting his rights.
The judgment should be reversed, and it is so ordered, and the cause is remanded with direction to take further proceedings in accordance with the views herein expressed. Coste awarded in favor of appellant.