62 P.2d 270 | Utah | 1936
Decedent owned considerable real estate at the time of his death, some subject to and some free from mortgages. The mortgages were placed on the property before his marriage. As the mortgages became due and were renewed after marriage, his wife joined in the notes as an accommodation maker and signed the mortgages. The estate is quite solvent. The administrator subtracted one-third of the total value of all the real estate, regardless of mortgages, as the widow’s share and claimed it exempt from
“One-third in value of all the legal or equitable estate» in real property possessed by the husband at any time during the marriage, to which the wife has made no relinquishment of her rights, shall be set apart as her property in fee simple, if she survives him; provided, that'the wife shall not be entitled to any interest under the provisions of this section in any such estate of which the husband has made a conveyance when the wife, at the time of the conveyance, was not and never had been a resident of the territory or state of Utah. Property distributed under the provisions of this section shall be free from all debts of the decedent except those secured by liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purchase thereof, and for taxes levied thereon. The value of such part of the homestead as may be set aside to the widow shall be deducted from the distributive share provided for her in this section. In cases wherein only the heirs, de-visees and legatees of the decedent are interested, the property secured to the widow by this section may be set off by the court in due process of administration.”
“Nowhere in the inheritance tax law is there any intimation that the owner of incumbered property owns less than all of it; that he is the holder of an interest only or owns less than the whole in case the property is subject to a debt or a lien. All through the act are indices pointing to the conception that it was intended by the word 'interest' to convey the idea of a distinct part of the property, a proprietary interest, ownership of a life interest in the one party and the remainder in another, a certain interest with another, as the interest of one partner in the property owned by a partnership — not an equitable or other lien depending for the possibility of ownership upon the future failure to pay a debt.”
Other authorities holding that a mortgage is not an estate or interest in land are Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Mack v. Wetzlar, 39 Cal. 247; Williams v. S. C. Min. Ass’n, 66 Cal. 193, 5 P. 85. A very good discussion is contained in Wade v. Miller, 32 N. J. Law, 296, at page 303. But contra, Mason v. Beach, 55 Wis. 607, at pages 612, 613, 13 N. W. 884.
As to those mortgages which were executed before marriage by the husband and which came into coverture and remained until his death in that status, the same rule applies. The husband is seized of the whole of the legal estate in the property subject to the mortgage. There is set aside for the wife one-third in value in fee simple, but subject to the prior charge of the mortgage on so much of her estate as is needed to supply any deficiency not satisfied out of his share.
Section 101-4-3, R. S. 1933, was originally taken in part from McClain’s Ann. Stats, of Iowa, 1888, § 3644, and incorporated in the Utah statutes in the year 1898. The Supreme Court of Iowa in the case of Trowbridge v. Sypher, 55 Iowa 352, 7 N. W. 567, 569, held that where real estate was encumbered, the mortgage should first be paid out of the real estate and the widow should receive one third of the balance in satisfaction of her right. This is contrary to the holding above set out in this opinion. It is urged that by the adoption of the Iowa statute, we also adopted the construction placed upon it by the highest court of that state. Ordinarily this is true, but not when we deem such construction clearly wrong. The court held that when the wife in her discretion, with her own hand, joins in executing an encumbrance upon the land in which she is dowable,
“She does this * * * with the view of enhancing the personal assets of which she, upon the death of her husband, becames distributee.”
We fail to see how the court could assume that the wife necessarily enhanced the personal assets by joining in the mortgage. There may not even have been personal assets. The court also states,
*422 “In our opinion Mrs. Sypher, when she executed the mortgage, subjected her distributive share to a pro rata, primary liability.” (Italics supplied.)
We think this wrong. We think the wife who was an accommodation maker subjected her interest to a primary-liability only in case it was necessary to resort to it to pay the mortgage. And especially is this true in view of the part of section 101-4-3 which provides that,
“Property distributed under the provisions of this section shall be free from all debts of the decedent except those secured by liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purchase thereof, and for taxes levied thereon.”
It is not claimed in this case that the indebtedness secured comes in under any of these exceptions. When the statute says, “shall be free from all debts of the decedent,” it supposedly means it. The Iowa statute did not have this provision in it. It is said that this provision came from the Indiana statute (Burns’ Ann. St. 1933, § 6-2313), the Iowa statute not containing it at the time of its incorporation in the Utah statutes. Indiana, by the decision of its highest court, gives this provision the construction it would seem to demand. Therefore, believing the Iowa decision unsound in principle and the construction placed by the Indiana courts on a statute similar to ours as sound in principle, we shall follow the latter and not the former.
To sum up: The widow gets one-third in value of any and all pieces of real estate, but her interest will be subjected to the payment of any deficiency in a mortgage debt on any such piece of real estate which came to the cover-ture or in which mortgage she joined, not met by the other two-thirds of the property. If there is cash or personal property or unencumbered real estate or a surplus between the mortgage debt on other real estate and her third interest in that other real estate, the cash or the proceeds of such personal property, unencumbered real estate, or such surplus should be applied to relieve her share in the prop
The judgment of the lower court is reversed, with instructions to enter an order fixing the tax at the amount it should be, calculated according to the decision herein rendered. Costs to appellant.