19 P.2d 905 | Mont. | 1933
Lead Opinion
The petitioner, Verda Eloise Metcalf, a minor, by and through her guardian ad litem, filed her petition to have the proceeds of certain life insurance policies set apart as exempt property, pursuant to the provisions of section 10145, Revised Codes 1921, which was denied in part. The appeal is from the order denying the petition. *544
The petition, together with the objections thereto of various creditors of Claude L. Metcalf, deceased, whose claims had been allowed, was submitted to the trial court for decision upon an agreed statement of facts.
Claude L. Metcalf and Lois Metcalf, residents of Montana, were husband and wife, and both met death as a result of an automobile accident occurring on August 30, 1930. The wife died on that day; the husband died on August 31, 1930. Both died intestate. The estate of Lois Metcalf has not been probated. Lois Metcalf was insured by two life insurance policies payable to Claude L. Metcalf, in the event of her death. Each was for the sum of $1,000; but owing to the double indemnity provisions contained therein, the sum of $4,013.36 was paid to the administrator of Claude L. Metcalf's estate. Claude L. Metcalf was insured by two life insurance policies, at the time of his death, for $400, each payable to his estate. As a result of his death and of double indemnity provisions contained in the policies, the sum of $1,598.48 was paid to his administrator. He also was insured by an accident insurance policy, and the sum of $5,000 was paid thereon to the administrator of his estate. The annual premium on all five insurance policies was approximately $114.35. The total expense of the administration and burial of deceased and wife was $2,603.46. The value of the other property of the deceased, exclusive of the payments from the insurance companies, was the sum of $860.91.
The petitioner is the daughter of Claude L. Metcalf by a former marriage. Her mother and father were divorced and her custody was awarded to her mother. At the time of the demise of her father the petitioner was twelve years of age. She had resided with her mother at Oakland, California, for more than two years prior to his death.
The trial court granted the petition as to the proceeds of the two life insurance policies amounting to $1,598.48, and denied the petition as to the residue. The petitioner asserts the proceeds of all the insurance policies should be set apart *545 to her as exempt property, after the payment of the expenses of administration and those incident to the burial of the deceased.
Under the provisions of section 10145, at any time after the[1] return of the inventory the court or judge may, on petition or on its own motion, set apart to the surviving husband or wife, or in the case of his or her death, to the minor children of the decedent, all of the property exempt from execution.
Section 9428 provides: "There shall be exempt to all judgment debtors who are married, or who are heads of families, the following property." Subdivision 7 thereof provides: "All moneys, benefits, privileges, or immunities accruing or in any manner growing out of any life insurance on the life of the debtor, if the annual premiums paid do not exceed five hundred dollars." As a part of subdivision 10 of the same section it is provided, "and no person not a bona fide resident of this state shall have the benefit of these exemptions."
Statutes similar to section 10145 are found among the laws of most states. It is generally held by the courts that these statutes are not statutes of succession or inheritance, but are statutes of exemption or creating a preferred claim against the estate of a deceased person. (Krumenacker v. Andis,
The right to have exempt property set aside for the support of[2] a minor child of the deceased may be waived. *546
(In re Estate of Pillsbury,
We therefore hold that section 10145 is a statute of exemption, or creating a preferred claim, and not a statute of succession.
Exemption statutes are to be construed liberally. (Mennell[3] v. Wells,
Under the common law the residence of the father was the residence of the child; but this rule, as we shall presently see, has been changed by statute.
The father and mother of a legitimate unmarried minor child[4] are equally entitled to its custody. (Sec. 5834, Rev. Codes 1921.) But a parent entitled to the custody of a child has a right to change its residence. (Sec. 5850, Id.) The mother, under the law and decree of divorce between the deceased and herself, was entitled to the custody of the petitioner and was authorized to fix her place of residence. These views are in accordance with the decided cases construing our modern statutory provisions changing the status of married women. (White v.Bickford, supra; Sudler v. Sudler,
Many states in their exemption statutes make no distinction between residents and nonresidents of the state. Some courts, in the absence of express statutory declaration, refuse to permit nonresidents to avail themselves of the benefits of exemption statutes, and declare the policy of the law to be against such recognition. Others take the view that, on principles of comity, nonresidents may avail themselves of the benefits of exemption statutes. *547
Both North and South Dakota have similar statutes to section 10145, supra, and exemption statutes not unlike our section 9428. Their respective Codes provide that nonresidents shall not be entitled to the benefits of the exemption statutes. (Sec. 2670, Comp. Laws 1929, South Dakota; sec. 7742, Comp. Laws 1913, North Dakota.) The supreme court of each of the Dakotas has had occasion under their statutes to determine whether or not a nonresident was entitled to have set aside exempt property in a probate proceeding; both hold against the allowance of any exemption to a nonresident. (Krumenacker v. Andis,
Our attention has been called to the fact that the North Dakota court has held that the proceeds of an insurance policy, payable to the personal representative of the heirs of the decedent, pass by succession and not under the exemption statute. (Talcott v. Bailey,
As noted above, under section 9428, after enumerating the exemptions to which the judgment debtor is entitled, the legislature, as a closing sentence to the entire section, provides that "no person not a bona fide resident of this state shall have the benefit of these exemptions." This declaration of the legislature is more emphatic than that found in the Dakota statutes, as there all that is required is residence; under our Codes the residence must be bona fide.
Exemption statutes such as under consideration are primarily[5] intended for the protection of the home, as well as for the protection of the state itself. The state is interested *548 in protecting the home and in throwing safeguards about it, but not the homes of nonresidents. (See Dakota cases cited.)
Our legislature has elsewhere declined to afford protection to the widow and minor children who are not residents of the state. The widow of a resident of Montana who has never resided here has no right of dower in the lands of her deceased husband. (Rosenow v. Miller,
Whenever the legislature has expressed its will upon any[6, 7] subject, the duty is enjoined upon the courts to accept its expression as the law on that subject and determine controversies arising with respect to it accordingly. The legislature speaks for the sovereign people. The purpose of legislation is to prescribe rules to regulate the conduct, and protect and control the rights, of the citizens. (In re Beck'sEstate,
If the provisions of section 9428 with reference to residence are to be given a meaning which its words clearly import, then petitioner, being a nonresident of Montana, is not entitled to have the proceeds of the life insurance policies set apart to her under the provisions of section 10145.
It is apparent, although no reason was assigned for the[8] conclusions reached by the trial court, that it arrived at its decision upon some other ground than the one forming the basis of this decision. However, if the correct conclusion was reached, it is immaterial what reasons were assigned or upon what grounds the court decided it. (Grush v. Grush,
The other questions discussed in the briefs and argued by counsel need not be decided in view of the conclusions reached herein. There being no cross-assignments of error, the order appealed from is accordingly affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MATTHEWS and STEWART concur. *549
Dissenting Opinion
I do not agree with the majority that the benefits of section 10145 can be availed of only by residents. It is not an exemption statute any more than is section 10146. Both were intended to make provision for the support of the family of the decedent. This is made plain by the title of the chapter in which the sections are found, which is entitled "Provisions for the support of the family." The same is apparent also from the wording of the sections.
It is true that the exemptions provided for by section 9428 are available only to bona fide residents of the state. The insured, father of claimant here, was a bona fide resident of this state at the time of his death. He is the one to whom the exemption is given, and it is his residence, and not that of his minor child, that controls. (Feld v. Borodofski,
All of the cases cited in the majority opinion are distinguishable. Thus the cases of In re James' Estate,
The case of Ex parte Pearson,
The case of White v. Bickford,
The only other case relied upon in the majority opinion is that of Krumenacker v. Andis,
Without prolonging this opinion, it is sufficient to say that some courts allow the widow's or child's allowance, out of the estate of a resident, to nonresident claimants. They are cited in the notes in 26 A.L.R. 132. In addition to the cases there cited, the following are to the same effect: In re Parkinson's Estate,
Had the legislature intended to limit the benefits of section 10145 to residents of the state, it could easily have done so, as was done in Colorado. (See In re Bubser's Estate,
The allowance under section 10145 is a charge against the estate in the interest of public policy. (In re Dougherty'sEstate,
In my opinion, the nonresidence of the minor child is no barrier to her right to receive the allowance provided for by section 10145. No useful purpose would be subserved in discussing what she should receive by way of an allowance under section 10145, under the facts here, in view of the majority opinion.
Rehearing denied March 24, 1933. *552