No. 4648 | Wash. | Jan 11, 1904
This is an appeal by Ellen Lloyd, widow of deceased Michael Lloyd, from an order made by the superior court of Skagit county on December 17th, 1902, for the sale of the real estate of deceased, on petition of John Lloyd, administrator of said estate. Michael Lloyd died intestate on July 1st, 1901, in Skagit county, leaving appellant, Ellen Lloyd, as his widow, and three sons by a former marriage, William, Leo, and Chester Lloyd, the latter being a minor. There was no issue of the marriage between deceased and appellant. The land in question was set over to deceased, prior to his marriage with appellant, by a decree of the superior court of Skagit county, entered in a divorce -suit between his former wife and himself. At the time of the decease of Michael Lloyd, and for some time prior thereto, he and appellant occupied these premises as their home. Eo declaration of homestead therein was ever made and filed in the auditor’s office of Skagit county, by either spouse, during the lifetime of Michael Lloyd.
On July 22nd, 1901, respondent, John Lloyd, was duly appointed administrator of such estate, and thereupon duly qualified in that behalf, and entered upon the duties of his trust. The personalty and realty of deceased were regularly inventoried and appraised. The appraisement of
On August 11th, 1902, the administrator, John Lloyd, filed his final account and petition for the sale of such real estate. Upon his final account and petition, notice and order to show* cause issued October- 1st, 1902, why such account should not be approved and the prayer of the petition be granted, and the time of the hearing thereof was set for November 10th, 1902. On that day the appellant and the children of deceased appeared, and filed their objections and answers, in writing, and were represented by counsel.
The appellant objected to the proposed sale of the real estate, alleging, that the same is her homestead, on which she resides with her three minor children, who are dependent on her for siipport; that said premises were regularly set aside by the court as her homestead; that the value thereof does not exceed $2,000; that “said premises were, during the lifetime of said deceased, his home and the home of his family, and, as such, were exempt from execution;” that there is a mortgage thereon for $350, with interest and taxes due. She prayed that the petition to sell be denied, and that the administrator be ordered to pay the mortgage indebtedness and taxes as preferred claims.
Witnesses were examined, and the court heard other evidence. It appeared, that the children, to whom appellant referred, were hers by a former deceased husband; that
On December 17, 1902, the court made its findings of fact and conclusions of law in the above matter, finding, among other things, that this real estate can be sold for, and is of the value of, about $3,000, and consists of farming land, containing about 63 acres; that the personalty had been exhausted in the course of administration; that there were outstanding claims against the estate amounting to $221.91, besides the mortgage debt of $350, and interest, and about $100 unpaid taxes on this realty, and certain costs and expenses connected with the administration and settlement of the estate; that there was only a balance of $289.50 in the hands of the administrator with which to liquidate these demands, taxes, and expenses; that tire realty was the separate property of deceased, and was all that remained for such purposes. An order was made and entered of that date approving the account of the administrator, and directing him to sell the realty at public auction.
The appellant’s counsel makes two contentions in his brief: (1) That the court erred in forcing the appellant to litigate the question as to whether this real estate was the separate property of deceased, or the community property of the estate; and (2) that this realty was the homestead of appellant and her family, and the court erred in granting the order of sale. The transcript shows that
In In re Kruger’s Estate, 55 P. 1056" court="Cal." date_filed="1899-01-25" href="https://app.midpage.ai/document/in-re-estate-of-kruger-5449567?utm_source=webapp" opinion_id="5449567">55 Pac. 1056, the supreme court of California, in considering the question of orders made in probate proceedings, on ex parte applications, by which the property and rights of the parties interested in an estate are affected, uses this language: “It cannot require the citation of authority in support of the proposition that one may not thus be deprived of his property without process of law.” The appraisement of this realty was, at most, only prima fade evidence of its value. The evidence adduced at the hearing on the petition was amply sufficient to justify the finding of the court that the value of this real
The case of Austin v. Clifford, 24 Wash. 172" court="Wash." date_filed="1901-03-06" href="https://app.midpage.ai/document/austin-v-clifford-4724791?utm_source=webapp" opinion_id="4724791">24 Wash. 172, 64 Pac. 155, was, in some respects, similar to the matter at bar, except there was no question as to the rights of creditors of the estate presented to the court. The court held, in the matter of the distribution of the real estate, that, under the provisions of §§ 6219 and 6222, taken in connection with §5246 of Bal. Code, the widow for herself and minor child could not claim any permanent homestead in the premises which was the separate property of the deceased husband at the time of his death; that the realty vested in the heirs at law of decedent. The court remarked, regarding the interpretation of these sections: “They exempt such homestead from the payment of any debts, whether community or individual, and authorize the court to set aside the use thereof, for a limited period, to the family of deceased.” This language was used with reference to the facts of the particular case decided. The court held that the widow could not lawfully claim the fee in the homestead, “irrespective of the claims of other heirs.”
The children of decedent, Michael Lloyd, are making claims to this property adverse to the contentions of appellant. Ordinarily such issues would properly arise when the question of the distribution shall come up in the regular course of administration, but as they seem to be so inseparably interwoven with appellant’s homestead claim in the premises, on the hearing of this appeal, at the risk of anticipating, we feel impelled to consider some of their features in this connection. The logic of the opinion in the case of Austin v. Clifford, supra, shows plainly that, under the
Applying this rule to the proceedings at bar, it must necessarily follow that the realty in question, on the death of Michael Lloyd, vested in his lawful heirs, subject to the lawful rights and claims of creditors, and all parties interested, in the regular course of administration. See, further, Stewin v. Thrift, 30 Wash. 36, 70 Pac. 116. If the contentions of appellant’s counsel be correct, no matter how valuable the homestead of decedent may be, it must go to his widow or children, to the exclusion of the rights of his creditors. This would have the effect of enlarging the homestead rights of the widow and children, by reason of the death of the husband. We cannot give our statutes on this subject any such forced construction. The filing of appellant’s homestead declaration after the death of her husband can have no such effect. Section 5246, supra, refers to the selection of the homestead, made prior to the death of either spouse.
The cases from California cited contra have no application. The statute of the state provides, if no homestead has been selected, designated, and recorded during the lifetime of the deceased, “the court must select, designate, and set apart, and cause to be recorded, a homestead for the use of the surviving husband or wife, and the minor children, . . . out of the comSmon property, or if there be no common property, then out of the real estate belonging to the deceased.” There is no such provision in our laws. The authorities from other states, to which we have been referred by appellant’s counsel, seem to fall in the same class as the California decisions, and show that the right to a permanent homestead can only exist .in, and he set apart from, the deceased husband’s or wife’s separate prop
No reversible error appearing in the record, the order appealed from must be affirmed, and it is so ordered.