139 P.2d 376 | Kan. | 1943
The opinion of the court was delivered by
The primary question presented is whether an allowance of $750 made by the probate court to the surviving spouse under the provisions of G. S. 1941 Supp. 59-403 is exempt from garnishment process instituted by a judgment creditor of the surviving spouse. Judgment was against plaintiff, the judgment creditor, and he appeals.
Appellees are Susie O’Dell, the surviving spouse, and J. H. Kennedy, administrator of the estate of John Norman O’Dell, deceased.
Appellant, Lester O’Dell, is the stepson of Susie O’Dell. The
“Wherefobb, it is ordered and decreed that Susie O’Dell be and is allowed as the surviving spouse of John Norman O’Dell in addition to the homestead furniture she has received, the sum of $750. And the said administrator is ordered to pay her said sum, take her receipt therefor, and make his report of said payment with the receipt for said payment attached.”
Heirs of the deceased appealed from that order to the district court where the order was affirmed and the probate court was directed to pay the allowance pursuant to the above order. The next day appellant had garnishment process served out of the city court on the administrator. The latter filed an answer in that court and alleged various grounds on which it was claimed the garnishment process was invalid. The motion was overruled and the administrator appealed to the district court. The latter court construed the answer as a combination of an answer and motion to vacate and set aside the garnishment proceedings. There is no complaint concerning that construction of the pleading. The district court sustained the motion on various grounds, the exempt character of the allowance being one of them. The appeal is from that order. The pertinent provisions of G. S. 1941 Supp. 59-403 read:
“When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent’s minor children during the period of their minority, from the personal property of which the decedent was possessed or to which he was entitled at the time of death, the following: ... (2) The sum of seven hundred fifty dollars, or other personal property at its appraised value in full or part payment thereof. The property shall not be liable for the payment of any of decedent’s debts or other demands against his estate, except liens thereon existing at the time of his death. If there are no minor children the property shall belong to the spouse; if there are minor children and no spouse, it shall belong to the minor children. The selection shall be made by the spouse, if living, otherwise by the guardian of the minor children. In case any of the decedent’s minor children are not living with the surviving spouse, the court may make such division as it deems equitable.” (Emphasis supplied.)
Was the allowance of $750 exempt from garnishment process?
Appellant next argues the allowance, according to the language of the statute, is exempt only from the payment of decedent’s debts or other demands against his estate. With that alleged intent of the statute we cannot agree. The underlying purpose and intent of the lawmakers was to provide an allowance for the benefit of the surviving spouse alone in the event there are no minor children, and to the minor children alone in the event there is no surviving spouse, and to the surviving spouse and the minor children during the minority of the latter when there are both minor children and a surviving spouse. The purpose was that they should not be left entirely destitute. The clear purpose of the old law and various amendments thereto prior to 1931 is clearly indicated in an able opinion in the case of Pellett v. Pellett, 132 Kan. 427, 295 Pac. 984.
Appellant further argues he should be entitled to reach at least one-half of the allowance as the share of the surviving spouse. The contention is based on the assumption the surviving spouse, notwithstanding there are minor children who are living with her, has title to an equal, divided one-half of the allowance with the right and power to dispose of it as she desires. The assumption is unsound. The surviving spouse, under the circumstances, does not hold title to an equal, divided one-half interest in the fund. The minor children do not hold title to an equal, divided one-half interest in the fund. It was intended the surviving spouse and the minor children should have the use of the entire allowance in common and that each of them should have an equal, undivided interest in the entire common fund for their joint support and maintenance as long as they lived together. In 34 C. J. S. 84, Executors and Administrators, § 362, the rights or interest of the beneficiaries in the common fund is stated thus:
“The allowance is intended for their joint support and maintenance, and, although, where particular property is set aside separately to individual beneficiaries or particular groups of beneficiaries, a certain amount to each, title thereto is held in severalty, not jointly, and without any cross rights therein of the different beneficiaries, where property is set aside to the widow and minor child or children in gross, they become owners of the property in common, and each has an equal, undivided interest in the title thereto. The' share of each is thrown into hotchpot, so to speak, and the whole, both as to corpus and income, is charged with the support of each of the beneficiaries so long as they occupy that relationship.”
Having determined the allowance, and every part thereof, was exempt from garnishment process, it is unnecessary to treat other grounds urged in support of the judgment.
The judgment is affirmed.