124 P. 777 | Mont. | 1912
delivered the opinion of the court.
Action in ejectment. On February 7, 1898, Albert Freeman died intestate in Ravalli county. Among the assets of his estate were lots' 8 and 9 in block 16 in the town of Hamilton, with a building thereon known as the “Cottage Hotel.” He left surviving him, as his only heirs at law, Martha A. Freeman, his widow, Egbert Freeman, a son by a prior marriage, and the plaintiffs, Myra Kerlee, nee Myra Sherrill, and George F. Sherrill, children of a daughter by the prior marriage. At the time of Freeman’s death the plaintiffs were minors. They are now sui juris. Pending the administration, Egbert Freeman died intestate, leaving no direct heirs. Subsequently, on May 24, 1899, the court, upon application of the widow, set apart to her as a homestead the lots and building referred to. Upon final distribution of the estate it was decreed that the widow was entitled, as heir, to an undivided one-third interest in the premises, and the plaintiffs to an undivided two-thirds, subject to the homestead right of the widow. The widow occupied the premises until October 4, 1910. On that date she conveyed to the defendant, by warranty deed, her undivided one-third interest, together with her homestead right, under the designation of her “life estate * * * in the whole of said premises,” together with the appurtenances, rents, issues, and profits thereof. The defendant entered immediately into possession and has ever since enjoyed the use and occupation of the whole property, to the exclusion of plaintiffs. The purpose of this action is to obtain a judgment awarding to them the possession of their undivided two-thirds interest, and for damages for the alleged wrongful withholding thereof by the defendant since entering into possession. The court sustained a general demurrer to the complaint and awarded defendant judgment for costs. The plaintiffs have appealed. Their contention is that by her conveyance the widow abandoned her homestead right, and that the plaintiffs imme
The order of the court setting aside the homestead was authorized by section 2581 of the Code' of 1895 (Rev. Codes, see. 7509), and the character of the right acquired by the widow depended upon the provisions of section 2584 (Rev. Codes, sec. 7512). The latter section declares: “When property is set apart for the use of the family, in accordance with the provisions of this Chapter, if the decedent left a widow or surviving husband, and no minor child, such property is the property of the widow or surviving husband. If the decedent left also a minor child or children, the one-half of such property shall belong to the widow or surviving husband, and the remainder to the child, or in equal shares to the children, if there be more than one. If there be no widow or surviving husband, the whole belongs to the minor child or children. If the property set apart be a homestead, selected from the separate property of the deceased, the court or judge can only set it apart for a limited period, to be designated in the order, which shall be a life estate to husband or wife, and the title vests in the heirs of the deceased, subject to such order.”
Prior to the enactment of the Codes of 1895, the fee of the homestead set apart by the probate court, if there were no children, vested in the surviving widow or husband. If the deceased left a minor child or children, it vested in the surviving widow or husband and the minor child or children in equal moieties. Otherwise it vested in the child, or, if there were more than one child, in them all as tenants in common in equal shares. (Comp. Stats. 1887, Div. 2, sec. 137; Bullerdick v. Hermsmeyer, 32 Mont. 541, 81 Pac. 334.) This was the result whether the property belonged to the separate estate of the decedent or not, because the statute so provided. Under the section quoted supra, when the property set apart is selected from the separate estate of the decedent, it can be set apart for a limited period only, to be designated in the order, “which shall be a life estate to the husband or wife”; the title vesting in the heirs of the deceased, subject to the order. It will be observed that the purpose of the
But counsel for defendant says that the purpose and spirit of the homestead laws is to provide a home for the surviving
Since the life estate of Martha A. Freeman vested without condition by way of contingency, the remainder interest, though it vested at once in the plaintiffs, cannot take effect under the provision found in section 4500 of the Revised Codes, supra, until her death. For we think that if the legislature had intended to make the life estate subject to be terminated by a grant by the beneficiary, it would have said so in specific terms and not left the right described, as it is, by an expression having a well-defined meaning, to depend upon a construction of the various sections of the Code which are in some respects indefinite and incongruous. It may be that the grant of the homestead selected in accordance with the provisions found in other sections of the Code (Rev. Codes, secs. 4719-4722) constitutes an abandonment of it. The question whether this is the result does not arise in this case. We think Martha A. Freeman was vested with a life estate not limited upon any contingency, and that the remainder,
The judgment is affirmed.
Affirmed.