220 P. 734 | Nev. | 1923
Lead Opinion
On November 23, 1921, Jennie Foster, then the wife of Sidney Smith Foster, instituted an action against him for the purpose of obtaining a decree of divorce, the exclusive custody of the minor child of the issue of said marriage, and also for the purpose of requiring the father by the judgment of the court, to pay to the mother for the care, maintenance, and education of said minor child the sum of $50 monthly until the said child shall become of age.
The husband answered the complaint, and a trial was had in the district court which resulted in a decree of divorce for the wife, by the terms of which she was awarded the exclusive custody of the minor child with
On February 18, 1922, Sidney Foster made his last will and testament, by the terms of which he bequeathed all of his property, with the exception of his automobile, to Hazel Chapman Aubery, with the provision and upon the express condition that she pay to his daughter, Ruth Virginia Foster, $50 per month from the time of his death until the daughter should become of age, in accordance with the divorce decree. He bequeathed his automobile to his daughter with the condition that, should she or her guardian attempt to break the will, she was to receive the sum of $5 only.
On June 15, 1922, Sidney Foster died; his will was duly admitted to probate, and Hazel Chapman Aubery was duly appointed executrix. The executrix collected from the New York Life Insurance Company the sum of $1,817, proceeds of an insurance policy upon the life of Sidney Foster, the annual premium of which did not exceed $500. Thereafter, Ruth Virginia Foster, by her another as guardian, filed a petition praying that the sum of $1,817 insurance money collected by the executrix, be declared exempt and set apart to the use of said minor child, as her sole and separate property, upon the ground that Ruth Virginia Foster was a’member of the family of Sidney Smith Foster. The executrix filed an answer to the petition, to which answer petitioner replied. Thereafter the matter was tried by the court and the petition granted. A motion for a new trial was made and denied. From the order granting the petition and denying the motion for a new trial, the executrix has appealed. In addition to the foregoing facts, it appears that at the time of Sidney Foster’s death his daughter was living with him at his home and had been living with him for about two months prior thereto. This arrangement was at the father’s request, and with the mother’s consent.
“Upon the return of the inventory or at any time thereafter during the administration, the court or judge, of his own motion, or on application, may set apart for the use of the family of the deceased all personal property which is exempt by law from execution. * * * ”
By subdivision 14 of section 5288 of the Revised Laws, as amended by Stats. 1920-1921, p. 24, the following property is exempt from execution:
“All moneys, benefits, privileges, or immunities accruing or in any manner growing out of any life insurance, if the annual premium paid does not exceed five hundred dollars, and if they exceed that sum a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and immunities so accruing or growing out of such insurance that said five hundred dollars bears to the whole annual premium paid.”
If Ruth Virginia Foster was a member of the family of the deceased, it was the duty of the court on proper application, by force of the foregoing statutes, to set the insurance money apart for her use. In Re Lavendol’s Estate, 46 Nev. 181, 209 Pac. 237. She was his only child, and by the effect of the divorce his former wife was no longer a member of his family.
It is urged by appellant that the decree of divorce, awarding the custody of the daughter to the divorced wife, had the same effect as to the daughter; that it established her legal family status separate and apart from the father. We think that the legal family status of the decree was limited merely to custody, and deprived the father of the right to share therein. The decree in this respect proceeded from the consideration that, of the parents, the mother, under all of the circumstances, including age and sex, was the proper one to be intrusted with the care and custody of the child. The father’s paternal interest in his minor child
In Biffle v. Pullam, 114 Mo. 50, 21 S. W. 450, the wife obtained a divorce from the husband and was awarded the custody of the children, and alimony. The husband continued to occupy the homestead. On the order allowing alimony, execution was issued and levied upon the homestead, which was sold to plaintiff, who brought suit in ejectment. A judgment for plaintiff was reversed by the supreme court, with directions to the lower court to enter judgment for defendant. In reference to the effect of the divorce the court said:
“The relation which theretofore existed between him and the members of his family was indeed disturbed and broken up by the divorce, but his right to hold this property exempt from sale under execution for the benefit of himself and family was not thereby lost or destroyed, no more than if his wife had died or deserted him, and his children were absent from him; in which case he would not have lost his homestead right.”
Holding in accord with the same principle are Woods v. Davis, 34 Iowa, 264; Walker v. Walker, 181 Ill. 260, 54 N. E. 956; Roberts v. Moudy, 30 Neb. 683, 46 N. W. 1013, 27 Am. St. Rep. 426; Shook v. Shook (Tex. Civ. App.), 145 S. W. 682-685.
“The fact that the court awarded the custody of the minor children to the wife did not deprive Sykes of his paternal interest in them, nor did it discharge him from his legal and moral obligation to care for and support them. They were still his offspring and a part of his family [citing cases].
“In Hall v. Field [81 Tex. 553, 17 S. W. 82] the object of the proceeding was to secure the use of the father’s homestead to the minor children after his death, he having been divorced from their mother. The decree of divorce gave the custody of the minor children to the mother and they actually lived with her, yet the supreme court held that the divorced husband continued to be the head of a family and was entitled to a homestead under the constitution. Although the children did not live with him, they constituted a part of his family. It could not be that the children were entitled to the homestead unless the father was the head of a family at his death. The facts in this case are more favorable to Sykes’s claim of homestead than in Hall v. Field. The facts which favorably distinguish this case from Hall v. Field are in this case the children actually lived with the father and constituted a part of his family, while in that case the children lived with the mother. Mrs. Sykes did not claim the benefit of the decree which awarded to her the custody of the children, while in the case of Hall v. Field the mother did avail herself of a similar order, took control of the children, and kept them with her. The case cited has not been questioned, and clearly settles the law to be that, although a man be divorced from his wife, and his children live separately and ¿part from him, his status as the head of a family is not lost; therefore, his right to a homestead remains.”
While, under the view we take, it was not essential for the daughter to be living with her father to constitute her a member of his family, yet such is the fact. And in this respect the present case may be
On the effect of a decree of divorce awarding the exclusive custody of children to the mother, and as to her privilege of waiving the right of such custody in favor of the divorced husband, the court in Sykes v. Speer (Tex. Civ. App.), 112 S. W. 422-426, said:
“When the decree of the court awarded her the custody of the children it was merely a judicial determination that she, as between herself and Sykes, should have the preference legal right to the exclusive custody, and to that extent alone deprived Sykes of his natural right to share equally with her in the custody and support of the children. The right thus conferred upon Mrs. Sykes was a personal one, and one which she might waive in favor of her divorced husband should she see fit to do so.”
We have given careful consideration to the authorities collected and analyzed in the able brief presented by
“'To constitute one or more persons, with another, living together in the same house, a family, it must appear that they are being supported by that other in whole or in part, and are dependent on him therefor, and, further, that he is under a natural or moral obligation to render such support.”
Clearly, the minor child in the instant case comes within the scope of this rule.
The judgment is affirmed.
Concurrence Opinion
concurring:
I concur in the order of affirmance and in that portion of the opinion of the learned chief justice which holds that under the testimony showing that Euth Virginia Foster was actually residing with her father at the time of his death, and had been so residing for some months prior thereto, the lower court was justified in holding that she was a member of his family. This finding being sufficient, in my opinion, to justify an affirmance of the judgment and order appealed from, I do not deem it necessary to consider the other question discussed.
