140 P. 732 | Mont. | 1914
delivered the opinion of the court.
On December 22, 1913, Mary Margaret Cotter died in Lewis and Clark county, leaving a will in which Thomas Cruse, her father, is named as her sole legatee. The will does not designate an executor. On December 29 Thomas Cruse filed in the district court a petition asking that the will be admitted to probate and that he be appointed administrator with the will annexed of the estate of the deceased. On January 9, 1914, the relator herein, as surviving husband of the deceased, appeared to contest the will by filing written grounds in opposition to the probate of it. At the same time he presented to the court a petition asking that he be appointed special administrator pending a determination of the contest. On January 16 Thomas Cruse filed his petition asking that he be appointed, presenting therewith, in writing, objections to the appointment of the relator on the grounds, among others, that he is not the surviving husband of the deceased, and that he is incompetent to act as administrator by reason of his improvidence. The petitions and objections were heard together, with the result that on January 27 the court made and caused to be entered an order denying the petition of the relator, and appointing Thomas Cruse. Thereupon, there being no appeal, the relator applied to this court for a supervisory order annulling the order of the district court and directing the appointment of himself. Two questions are submitted for decision, viz.: Whether, upon the facts disclosed, the relator is the surviving husband of the deceased; and whether he is incompetent by reason of his improvidence;
It appears that the deceased obtained a divorce from her first husband by a decree of the district court of Lewis and Clark county, on May 19, 1911, and that she and the relator were married at Boulder, in Jefferson county, on October 26, 1911. It was insisted by counsel for Thomas Cruse in the district court, and the same argument was made at the hearing
To a proper understanding and decision of the question presented, a brief statement of the history of the legislation is necessary. The Code Commission created by the Act of the territorial legislature approved March 14, 1889 (Laws 16th Sess. p. 116), filed with the secretary of state on February 4, 1892, the result of its labors in the form of four Codes, which, with amendments thereto, were adopted by the fourth legislative assembly, as the Civil Code, Code of Civil Procedure, Penal Code and Political Code, -and were published as the Codes'of 1895. When the assembly convened in January, 1895, it at once became a question what course should be pursued by it in adopting these Codes. The plan recommended by the Code Committee was to enact each Code as a whole by a separate bill with certain excepted provisions, and thereafter to enact such amendments by separate bills as might be deemed necessary (House Journal, p. 115); and this plan was adopted and pursued. House Bill 36, to establish a Civil Code, was introduced on January 17 (House Journal, p. 86). It was finally adopted on February 19 (House Journal, p. 280), and approved by the governor on the same day. The Parts, Divisions, Titles, Chapters, Articles, and section numbers, except certain sections which had been stricken out, remained as they were when the Code was reported by the Commission. By its own terms, the
It was said by this court, in considering the validity of another statute enacted at the same session of the legislature, the title of which was similarly defective: “The task of the fourth legislative assembly was a most arduous one. It was essentially a session of codification and general revision of all the laws of the state, both those which had been carried forward from the session Acts of the territory, and those which had been enacted at the third session of 1893.” (In re Ryan, 20 Mont. 64, 50 Pac. 129.) This statement is amply justified by the brief history of the course of legislation during the sitting of that assembly, and the plan adopted to accomplish the task before it. Becognizing the impossibility of considering section by section the four Codes, consisting of some 10,000 sections, within the sixty
The obvious reason for the exception of appropriation bills and bills for the codification and general revision of the laws is that the first are necessary for the maintenance of the government, and hence their validity ought not to be open to question for informality; and the latter are so extraordinary in their character that both the members of the legislative body and the public are presumed to know what is being done. Furthermore, it would be impracticable to formulate a title which would
If we entertained any doubt upon the subject, we would
Counsel for respondents cite the case of State v. Mitchell, 17 Mont. 67, 42 Pac. 100, as directly in point in support of their contention. .The title of the Act there in question was unintelligible and misleading because its purpose as expressed in the title was to amend a Chapter of the Penal Code relating to gaming whieliihad been stricken from the bill to establish that Code, and was not a part of it when it was finally adopted and approved by the governor. There was not, therefore, before the legislature at that time anything which could be the subject of amendment. This, it seems, was a sufficient reason to invalidate the Act, Be that as it may, under the circumstances the Act could not have been sustained upon any other theory than that it was a piece of independent legislation dealing with the subject of gaming, and hence did not fall within the exception in favor of revisionary legislation. For these reasons we do not think the case in point.
In the foregoing discussion we have assumed that if section 3657, supra, were operative, it would render void any marriage falling within its prohibition. Since we have reached the conclusion that it was repealed by House Bill 142, supra, it is not necessary to determine whether it would have had'this effect or would have rendered such marriage voidable only.
From the foregoing the conclusion follows that the marriage between the relator and deceased was valid, and that as the surviving husband he is prima facie entitled to be considered first by the court in the selection of a competent person to act as special administrator. There is scarcely any evidence in the record of a substantial character tending to show that he is incompetent by reason of his improvident habits. It is apparent, however, that the district judge denied his application and made the order of appointment as it did, upon the theory that the marriage was void, and that relator is not eligible for this
The order is therefore annulled, with direction to the district court to grant the petition of relator, unless, from the evidence taken or which may be taken at a further hearing, it is found that he is incompetent because of improvidence. In this event the court will appoint some suitable and competent person selected by the relator, or in default of such selection, the petitioner Thomas Cruse.