Gillette v. McLaughlin, 180 N.W. 952

Gillette v. McLaughlin

180 N.W. 952 | S.D. | 1921

Lead Opinion

GATES, J.

From 1893 to 1912 James A. Gillette, with his wife and children, used and occupied the premises in question- as a homestead, the same being situated in Moody county.' In the fall of 1912 the wife, deeming it-unsafe for her and the children to longer live with her husband, removed to Elandreau. Subsequently an action for separate maintenance was begun by her which resulted in an annual allowance to her of $400. The allowance being insufficient to support herself and family, and finding that she -could better support and educate the children in Minneapolis, she took them there in 1914. She lived near the University and kept students as roomers and boarders. The daughter attended *512the University and the two sons attended school. All of the children worked and earned what money they could. The husband remained on the farm for several years, after which it was leased to a tenant. He died in July, 1918, testate. The wife left her husband solely because of his cruel treatment and because she feared to remain with him, and not with the intention of abandoning the homestead. It was at all times her intention to return to the homestead and reside thereon when conditions were such as to make it safe for her to do so.

■From judgments of the circuit court, on appeal from the decisions of the county of Moody county in the matter of the estate of said decedent, giving the widow $750 allowance, and setting apart to her the premises in question as a homestead until the property is otherwise disposed of by law, and from: orders denying new trial, the executor appeals. For convenience the appeals are considered together.

[1] The chief contention of appellant is that the evidence was insufficient to sustain the findings of the court in that he claims that the evidence shows that respondent, as well as the decedent, had abandoned the homestead, and that she has been a resident of the state of Minnesota ever since the year 1914, In so far as the homestead question is concerned the removal of the wife to Minnesota was immaterial. There was no evidence tending to- show the abandonment of the homestead, as such, by the. husband. It therefore remained his homestead, and therefore the homestead of his wife and minor children. Such being the case, the widow was entitled to' have the homestead set apart to her. Rev. Code 1919, § 3345-

[2] In so far as the question of personal property allowance is concerned, we are satisfied that the evidence clearly shows a temporary absence by the wife, the responsibility for which rested upon the husband. Such being the case, the widow, was entitled to the allowance nfade. Rev. Code 1919, § 3340; In re James’ Estate, 38 S. D. 107, 160 N. W. 525. Reaving home because of the cruelty of her husband does not amount to abandonment of the homestead by the wife. Rogers v. Day, 115 Mich. 664, 74 N. W. 190, 69 Am. St. Rep. 593.

[3] At the trial, certain legatees and devisees appeared specially and objected to the introduction of any evidence for the *513reason that they had. not been served with process of any kind nor made parties to the proceeding, and therefore that there was a misjoinder of parties, which objection was overruled. -0'f course, such objection) did not show a misjoinder of parties. Probably the objectors intended to assert that there w'as a defect of parties defendant. Whether such appearance constituted in reality a general appearance, a,s is contended by respondent, it is not necessary now to decide. If the executor did not fully represent all interests adverse to the claims of the widow, especially the interests of the objecting legatees and devisees, then the executor was not aggrieved by the ruling, and therefore he cannot complain thereof. If the executor did fully represent such adverse interests, then the objection was groundless.

Finding no error in the record, the judgments and orders appealed from are affirmed.

Concurrence Opinion

WHITING, J.

(concurring in the result.) Appellant’s counsel, claiming to appear specially on behalf of certain other parties, objected to certain evidence. This objection was overruled, and such ruling is now assigned as error. No objection was interposed to this evidence by appellant. Those who sought to object have not appealed. The-claimed error is not before us for determination.