Hazel Hopkin WAMBEKE, Charlotte Hopkin Lewis and Neil Hopkin, Appellants (Objectors below), v. Eileen HOPKIN, Individually and as Administratrix of the Estate of Leo N. Hopkin, Deceased, Appellees (Petitioners below).
No. 3051.
Supreme Court of Wyoming.
June 12, 1962.
Mr. Justice McINTYRE delivered the opinion of the court.
This case presents the question as to whether a widow who owns the fee title to the family homestead by reason of survivorship in an estate by entireties shall also be entitled to receive from the estate of her husband one-half of the value of a homestead exemption, there being minor children of the deceased who are not children of the widow. It also presents the question as to whether a note payable to parties who are husband and wife shall be presumed to be the property of the widow alone upon the death of her husband.
Leo N. Hopkin, a resident of Big Horn County, Wyoming, died intestate March 13, 1960. His heirs consisted of Eileen Hopkin, his widow, and five children by a former marriage. At the time of his death three of the children were over 21 years of age and two of them were minors. According to the stipulation of all the heirs Mr. Hopkin, during his lifetime, purchased a house and lot for a home for his wife and family and himself in Lovell, Wyoming. It is agreed that its reasonable market value at the time of purchase and at the time of death was $9,500. Title was taken in the name of Leo N. Hopkin and Eileen Hopkin. They were at that time husband and wife but were not so designated in the deed. It is further agreed that Hopkin, his wife and one minor child occupied this residence as a home from the date of its purchase to the date of his death.
Prior to the marriage of Leo N. Hopkin and Eileen Hopkin, Mr. Hopkin owned certain real and personal property which was sold to Fred Grabbert after his marriage to Eileen. In connection with this sale a promissory note was executed by Grabbert for $52,000 payable to Leo N. Hopkin and Eileen Hopkin. A balance of $32,000 was still owing on the note at the time of Hopkin‘s death.
Ernest J. Goppert of Goppert & Fitzstephens, Cody, for appellants.
Robert B. Bowman of Bowman & Bowman, Lovell, for appellees.
The probate judge approved her action in both instances allowing $2,000 to the widow and $2,000 to the two minor children in lieu of homestead property, and permitting the widow to retain the Grabbert note as her sole and individual property. The three adult children of Hopkin have appealed both decisions insofar as such decisions favor Eileen Hopkin. They do not contest the award of $2,000 to the two minor children.
The Homestead Exemption
The provisions of
“When any resident of this state dies leaving a widower or widow, or minor children, the court shall set over to such widower or widow, if any, and if none, to such minor children, as their absolute property, all property of said decedent exempt from execution under the exemption laws of this state, including the homestead * * *; and in case decedent shall not have any or all of the property specified under said exemption laws, such widower, widow or minor children, as the case may be, shall be entitled to the value of such exempt property either in money or other property as they may prefer. * * *”
Following these provisions is a proviso to the effect that, if the surviving spouse is not the parent of some of the minor children, one-half of (said) property shall be set over to the surviving spouse and one-half to such minors.
Inasmuch as the foregoing section pertains to property of a decedent “exempt from execution under the exemption laws of this state,” it is necessary that it be construed along with the applicable exemption laws. In that connection
“Every householder in the State of Wyoming, being the head of a family * * * shall be entitled to a homestead not exceeding in value the sum of four thousand dollars ($4,000.00), exempt from execution and attachment * *”
According to
It is stated in Annotation, 89 A.L.R. 511, 512, that as a general rule a debtor need not be the absolute owner in fee in order to establish a homestead right in land, but that “any interest,” coupled with the requisite occupancy by the debtor and his family, is sufficient to support a homestead exemption. At pages 540-548 of the annotation, this majority rule is particularly applied to tenants in common and to joint tenants. The author of the annotation recognizes, at page 548, that even in jurisdictions following the minority point of view, to the effect that a homestead cannot be established on property held in joint tenancy or tenancy in common, there are certain exceptions and modifications.
The following cases have held that the right of homestead could attach to property held by husband and wife as joint tenants or as tenants by the entirety: Simpson v. Biffle, 63 Ark. 289, 38 S.W. 345; Oswald v. McCauley, 6 Dak. 289, 42 N.W. 769; Lininger v. Helpenstell, 229 Ill. 369, 82 N.E. 306, 120 Am.St.Rep. 264. We know of no jurisdiction which has recognized homestead rights in property held in tenancy in common and still rejected homestead rights in property held by tenants by the entirety. We are shown no reason why this should be done in our state.
Since it must be regarded as the settled law of Wyoming, under the rule of stare decisis, that a homestead right can be acquired upon an undivided interest in land, and that it is immaterial in whom the legal title is vested, it necessarily follows that the right of homestead will attach to real estate held by a husband and wife as tenants by the entirety and occupied by them as a residence. See Waddy v. Waddy, 200 Tenn. 140, 291 S.W.2d 581. In 40 C.J.S. Homesteads § 88, pp. 525-526, it is said that the rule as to the existence of homestead rights in property held jointly or in common is held especially applicable where the tenants in common or joint owners are husband and wife.
In the case at bar the only question before us, as far as the widow‘s claim for $2,000 is concerned, is this: Did Leo Hopkin at the time of his death have the property specified in
It would be an anomaly to hold, as this court did in Altman v. Schuneman, supra, that the husband has a homestead exemption even though he had transferred the entire fee title to his wife, and still hold, as the widow contends here, that title must come to her from her husband‘s estate before it can be said that he had a homestead. As a corollary to what was decided in the Altman case, it can be said that, since it does not matter in whom the legal title is vested, likewise it does not matter how the legal title becomes vested in the person or persons who may be entitled to receive it.
Counsel for the appellee, Mrs. Hopkin, cites In re Edelman‘s Estate, 68 Wyo. 30, 228 P.2d 408, 414, contending that it establishes the right of a widow, in a case similar to the case at bar, to request a one-half share of the exempt property. In that case the court considered that the widow would receive her share of the exempt property under the will of the deceased without requesting it. A statement was made, however, to the effect that nothing would prevent her from requesting her one-half share of the exempt property. This statement fails to support the widow‘s contention in the instant case. Edelman at the time of his death did not have a homestead, whereas Hopkin did have.
Rights of heirship or inheritance vest immediately on the death of the intestate, and the devolutionary rights of the heirs must be determined by relation to that
In
The dictionary definition of a decedent is a dead person, and a dead person cannot have anything. Therefore, if we attempt to apply the phrase in question as of a time after death, we make the statute ambiguous and meaningless. On the other hand, by saying the question presented is whether Leo Hopkin had a homestead at the time of death we make the statute meaningful and give a sensible construction to the word “decedent,” without substituting words of our own.
During the lifetime of husband and wife, in an estate by the entirety, the estate can be changed or severed only by the voluntary joint acts of both parties or by operation of law, e. g., by divorce. Hutcherson v. United States, D.C.Mo., 92 F.Supp. 168, 170, affirmed United States v. Hutcherson, 8 Cir., 188 F.2d 326; Schafer v. Schafer, 122 Or. 620, 260 P. 206, 208, 59 A.L.R. 707; 41 C.J.S. Husband and Wife § 34, p. 461. After one of the parties dies, the estate is vested solely in the surviving spouse. Our state gives recognition to this in
The question as to whether the allowance of $2,000 to the minor children was proper is not before us and we will not disturb such allowance. Ordinarily, as set forth in 40 C.J.S. Homesteads § 269, p. 773, where in the nature of things land cannot be set apart as a homestead to the survivors, then the law will make provision for them in lieu thereof. Without deciding whether
The Grabbert Note
The children of Hopkin who were of age at the time of his death, as appellants, contend that tenancies by the entirety do not apply to personal property in Wyoming, and that a joint tenancy with the right of survivorship is not created by making a note payable to two persons who are husband and wife unless there is evidence showing an intent of the maker so to do. No such evidence is claimed in the case before us.
Counsel for the Hopkin widow takes the position that the question as to whether a tenancy by the entirety can exist in personal property in Wyoming does not arise. He insists, however, that Hopkin and his wife were joint tenants with respect to the Grabbert note and that by reason thereof the wife, as survivor, became the sole owner of such note. His position is based upon the erroneous assumption that this court, in the case of Hill v. Breeden, 53 Wyo. 125, 79 P.2d 482, decided that a promissory note creates a joint tenancy in the obligees.
Nothing was said in the Hill case to justify counsel‘s assumption. On the contrary, recognition was given, at 79 P.2d 487, to the fact that the survivor may have only the legal title and not the equitable title or the whole of the note. The court went on to say that it did not need to decide whether there was any duty to account. Having held, at 79 P.2d 487-488, that the right of action passes to the survivor, it was then said that title to the instrument existed in the survivor for that purpose.
In the Hill case, at 79 P.2d 487, the supreme court declined to decide whether a tenancy by the entirety can exist in personal property in Wyoming, and in Hartt v. Brimmer, 74 Wyo. 338, 287 P.2d 638, 640-641, it declined to decide how a joint tenancy with the right of survivorship in personal property may be created. In the case at bar it matters not whether we think in terms of a tenancy by the entirety or a joint tenancy. The parties concerned were in fact husband and wife, and if either of these estates has been created, it may as well, for all practical purposes, be called an estate by the entirety.
Starting with the proposition that at common law a conveyance to a husband and wife was presumed to create an estate by entirety, and that generally speaking the common law favored joint tenancies, we find more modern text writers and decisions saying that joint tenancies are now in disfavor, and in most of the states statutes have been enacted modifying or abolishing them. Hill v. Breeden, supra; 14 Am.Jur., Cotenancy, §§ 11 and 12, pp. 82-85; 41 C.J.S. Husband and Wife § 31 pp. 440-442.
Whether a husband and wife take title by entirety to personal property transferred to them in their joint names has been held a question on which the authorities are in hopeless conflict. Ciconte v. Barba, 19 Del.Ch. 6, 161 A. 925, 926; 41 C.J.S. Husband and Wife § 35, p. 479. We are impressed with the long list of cases cited by counsel on both sides of this proposition, and with the endless array of annotations which have been compiled in support of both the pros and the cons. Cases on either side are well-reasoned, and it would be most difficult to determine whether the affirmative or negative of this proposition is favored in more jurisdictions. In any event, we can have more confidence in a decision based upon something other than a balance of conflicting authorities.
Wyoming has not joined those states which have seen fit to abolish joint tenancies or to establish a legal presumption against such tenancies. However, even at common law and as a general rule in those jurisdictions not otherwise controlled by statute, there are technical requirements of a joint tenancy or tenancy by the entirety. There are four essential characteristics of either tenancy, viz., (1) unity of interest, (2) unity of title, (3) unity of time, and (4) unity of possession. For a tenancy by the entirety, there is of course the additional characteristic of unity of person which exists only in the case of a husband and wife. Peters v. Dona, 49 Wyo. 306, 54 P.2d 817, 820; 41 C.J.S. Husband and Wife § 31, p. 442; 14 Am.Jur., Cotenancy, § 7, p. 81.
As stated in Annotation, 1 A.L.R.2d 249, and quoted with approval in Hartt v. Brimmer, supra, at 74 Wyo. 338, 287 P.2d 640-641:
“Numerous cases subscribe to the view that where from the language of the instrument it is evident that the parties thereto intended to create a right of survivorship, this intent will be given effect even though the instrument, by reason of the absence of one or more of the four unities of interest, time, title, and possession, did not create the common-law joint tenancy or tenancy by the entirety.”
The foregoing logic and reasoning bring us to this conclusion: In order to create in Wyoming a joint tenancy or tenancy by the entirety, in personal property,
- Each of the four unities of interest, time, title, and possession must be present, with the added unity of person for a tenancy by the entirety; or
- In the absence of one or more of the first four unities, it must be evident from the language of the instrument itself that the parties thereto intended to create a right of survivorship.
In the Grabbert promissory note, the payees were not designated as husband and wife. Therefore, we need not decide and we will not decide whether such a designation could be considered sufficient, in the absence of one or more of the essential unities, to raise a presumption that the right of survivorship was intended. It is clear that nothing appears in the Grabbert note which could be construed as a prima facie showing of an intent to create a right of survivorship. Our remaining consideration, then, is whether or not each of the four unities are present to create a joint tenancy or tenancy by the entirety.
In Annotation, 1917C L.R.A. 550, 571, it is said that in the case of a joint-bank deposit payable to either, either party can at any time withdraw the entire deposit so that the joint property would be dissipated, and thereby a necessary incident of joint tenancy does not exist. The same statement is found in 7 Am.Jur., Banks, § 435, p. 307. If that be true with respect to a joint-bank deposit, it would also be true with respect to a promissory note. In Hill v. Breeden, supra, at 79 P.2d 486, it was pointed out that when a contract is payable to two or more persons jointly, payment may be made to either of them. Thus, as in the case of a joint-bank deposit, either of the obligees in a promissory note could collect and dissipate all or any part of the debt.
In Staples v. Berry, 110 Me. 32, 85 A. 303, 305, the Supreme Judicial Court of Maine declared a joint tenancy implies that the interests of the joint holders remain the same until death, and then the survivor takes all. Referring to the fact that either party could at any time withdraw the entire deposit, that court concluded: “This is utterly at variance with the attributes of a joint tenancy.” See 41 C.J.S. Husband and Wife § 35, p. 484, n. 67, for holdings to the effect that during the joint lives of husband and wife an estate by entirety in personalty must be indissoluble except by the consent of both parties.
But even more fatal to the theory of a common-law joint tenancy in a promissory note is the fact that such an instrument is merely evidence of a debt—a chose in action. It is not an object of possession. A chose in action, as defined in Pan American Production Co. v. United Lands Co., 5 Cir., 96 F.2d 26, 27, is the antithesis of a chose in possession. See also Salvation Army, Inc. v. Hart, Ind.App., 149 N.E.2d 557, 569, Id., 239 Ind. 1, 154 N.E.2d 487, 496-497. In 73 C.J.S. Property § 9, pp. 176-177, it is said that the term includes a personal chattel not in actual possession, and that it has been held to include an evidence of indebtedness, whether note, bond, bill of exchange, or other instrument, and however secured.
Thus, the Grabbert promissory note being a chose in action and not property capable of being possessed, there is with respect to it an absence of unity of possession, and a common-law joint tenancy or tenancy by the entirety fails. Also, as already pointed out, neither such tenancy was created by the parties themselves because nothing appears in the instrument involved to evidence an intention to create a right of survivorship.
It must therefore be assumed that Hopkin intended to make his wife a gift of an undivided one-half interest in the note and nothing more. See Salvation Army, Inc. v. Hart, supra. See also Nussbacher v. Manderfeld, 64 Wyo. 55, 186 P.2d 548, 554, wherein this court, at least impliedly, accepted comments from Restatement of the Law of Trusts to the effect that when one pays the consideration and takes title to property in the name of himself and
Conclusion
We conclude that the orders appealed from must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Mr. Justice HARNSBERGER (dissenting).
This court has previously held that a conveyance to two persons who are husband and wife at the time property vests in them creates an estate by entireties. Peters v. Dona, 49 Wyo. 306, 54 P.2d 817; Ward Terry and Company v. Hensen, 75 Wyo. 444, 297 P.2d 213; Amick v. Elwood, 77 Wyo. 269, 314 P.2d 944.
The essential characteristics of an estate by the entireties are: (1) It can occur only between husband and wife and because, in contemplation of law, they are one person; (2) each is seized of all and not by one-half, or by any other portion of the property, as, for instance, in the case of an estate in common; and (3) the whole estate remains in the survivor. See 41 C.J.S. Husband and Wife § 34a, pp. 458-460, and Ballentine, Law Dictionary with Pronunciations, 2d Ed., “per tout et non per my“, p. 963. This leaves inescapable the conclusion that where there is a tenancy by the entireties there is no property whatsoever remaining in a decedent, or in his estate, from which the homestead allowance can be set over to the survivor of the marriage.
Tenancy by the entireties is different from all other types of tenancy. While more similar to a joint tenancy with right of survivorship, than to other tenancies, it is different in at least two respects: (1) Because it occurs only when the tenants are man and wife, and (2) because the unilateral action of either tenant cannot destroy the tenancy or affect the title.
“* * * When any resident of this state dies leaving a widower or widow, or minor children, the court shall set over to such widower or widow, if any, and if none, to such minor children, as their absolute property, all property of said decedent exempt from execution under the exemption laws of this state, including the homestead, and such property shall not be subject to the payment of debts of said decedent, except expenses of administration, or the last sickness of said decedent, and funeral expenses, in cases where there is not other property in said estate sufficient to pay said expenses; and in case decedent shall not have any or all of the property specified under said exemption laws, such widower, widow or minor children, as the case may be, shall be entitled to the value of such exempt property either in money or other property as they may prefer. Provided that, if such surviving spouse is not the parent of all or any such minor children, one-half of said property shall be set over to such surviving spouse and the other one-half to said minors who are not children of said survivor and a guardian shall be appointed for them as in any other cases of estate property descending to a minor. The right of a widower or widow to any of the property specified in this section shall in no case be affected by his or her renouncing or failing to renounce the benefit of the provisions made for him or her in the will of said decedent. (Laws 1919, ch. 28, § 1; C.S.1920, § 6879; R.S.1931, § 88-2904; Laws 1943, ch. 8, § 1; C.S.1945, § 6-1504.)”
In enacting this statute the legislature did not see fit to except from its requirement, for an allowance to surviving spouses, those instances where the surviving spouse was the owner of the property which was used as a homestead during the lifetime of the deceased, or cases where the title which deceased possessed during life became extinguished or terminated by death.
The majority opinion appends that exception to the statute. But to read such an
The property to be set over to the widow and minor children under the provisions of
The appellant‘s position, as well as the majority‘s decision, leaves unaltered the money award to the two minors, who were children of the deceased, but not children of the surviving widow. This gives a strange result. The court denies a money allowance to the widow in lieu of the homestead the statute says shall be set over to her. This is presumably because the decedent does have the homestead referred to in the statute. Yet the court leaves standing an allowance in money in lieu of such homestead to the children of the deceased by a former marriage which may be done only when the decedent does not have the homestead.
The opinion‘s assumption that
The court‘s majority overlooks or ignores a material difference between the homestead exemption statute and the homestead allowance statute in dispute here. Under the homestead exemption statute all that is preserved is the right of both spouses to use and occupy the premises free from levy and execution, irrespective of which of the spouses owns the property. But under the homestead allowance statute the surviving spouse receives the title itself to property which that spouse did not theretofore possess. This is a much greater right than is accorded under the homestead exemption law.
There is no dispute, that for purposes of the homestead exemption provided by
Although there may be a homestead in property, irrespective of the type of title possessed by either or both spouses, it would annul and defeat the only purpose of
It seems axiomatic to say if property which had been used and occupied as a homestead was transferred inter vivos by the concurring acts of the parties, the entitlement of the grantors of that property under either the homestead exemption law,
There is a parallel between
As the majority decision deprives the widow of the right to have either money or other property set over to her in accordance with the requirement of
So, in the instant case, the right of the surviving spouse to the complete title to the homestead property, freed of all previous
In Ward Terry and Company v. Hensen, 75 Wyo. 444, 451, 297 P.2d 213, 215, this court reiterated the basic law respecting tenancies by the entireties saying:
“* * * Under such a conveyance or devise husband and wife, by reason of their legal unity by marriage, take the whole estate as a single person with the right of survivorship as an incident thereto, so that if one dies, the entire estate belongs to the other by virtue of the title originally vested: 26 Am.Jur. § 66, p. 692.” (Emphasis supplied.)
This can mean but one thing. When one spouse dies, the title or interest of which the deceased was possessed during life does not pass to the survivor. The title or interest which the deceased owned or possessed simply became nonexistent. It was extinguished as completely as though it never existed. The survivor gained no new or additional title, but merely retained that which she had theretofore owned and possessed from the initial date of conveyance to her and her spouse by the entirety.
The effect of the court‘s majority decision is indeed far reaching. Under the majority‘s new rule, if the property used and occupied as a homestead by married persons had been the sole property of the wife, and the husband dies, neither the widow nor the deceased‘s minor children by a previous marriage may lawfully be entitled to have set over to them any allowance of property, or money, or other property from the estate of the deceased. The same will be true if the homestead property was held in common. We may also expect that where the homestead was in property wherein the deceased owned but a life estate, both the surviving spouse and the minor issue of a deceased‘s previous marriage will be deprived of the benefits of
If more is needed to question the correctness of the decision, the Wyoming case of In re Bergman‘s Survivorship, 60 Wyo. 355, 377, 151 P.2d 360, 368, is called to attention. There the Chief Justice, with the entire court concurring, wrote:
“* * * A homestead, if the title is in the name of the deceased, is a part of his estate but is set aside as exempt through favor of the statute [§ 2-213, W.S.1957] to the surviving spouse and minor children. * * *” (Emphasis supplied.)
This obviously recognized that the homestead reference in
“* * * The property becomes the absolute property of the survivor upon the death of a spouse and is not a part of the estate of the latter. * * *” (Emphasis supplied.)
The opinion of the majority labors the question of a home occupied during marriage as being a homestead in contemplation of our exemption laws, irrespective of whether owned by either or both spouses. This dissent does not question that point, but insists it is foreign to the issue involved.
No authority is offered in support of the opinion which touches the real point to be decided. The decision here must be arrived at solely from a consideration of what our statutes plainly say—not from what may judicially be written into them.
There is no criticism of the majority‘s decision respecting the Grabbert Note. The decision of the lower court should otherwise be affirmed.