Atchison v. Arnold

• Decision Date: 20 April 1903
• Parties: ATCHISON v. ARNOLD, ADMINISTRATOR, ETC
• Court: Wyoming Supreme Court

72 P. 190

11 Wyo. 351

ATCHISON v. ARNOLD, ADMINISTRATOR, ETC

Supreme Court of Wyoming

April 20, 1903

On petition for rehearing, October 20, 1903.

Rehearing Denied 11 Wyo. 351 at 358.

ERROR to the District Court, Uinta County, HON. DAVID H. CRAIG Judge.

Caroline Atchison, claiming to be an heir at law of one Marinda Wilson, deceased, and as such to be the owner of a one-fourth interest in a certain tract of land inventoried in the estate of one John B. Wilson, deceased, filed exceptions to an order of court directing a sale of the premises by the administrator of the John B. Wilson estate. The sale was made and confirmed, and said protestant prosecuted error. The material facts are stated in the opinion.

Petition in error dismissed.

J. H Ryckman, for plaintiff in error.

The facts in this case are not in dispute. It is conceded that the deed of conveyance of the land in dispute was an ordinary warranty deed granting the land in fee to John B. Wilson and Marinda Wilson, who were husband and wife at the time, and were such at the time of the death of Marinda Wilson, which occurred March 17th, 1896. It is conceded that at the time of her death and for some time prior thereto the land in controversy was occupied by them as their home. It is conceded that at the time of the death of Marinda Wilson she left surviving her as her heirs at law the said John B Wilson and this protestant, Caroline Atchison, her only child by her former husband.

Upon her death, her undivided half of the land in controversy vested in the said John B. Wilson and this protestant. Hence at the time of the death of the said John B. Wilson, he was seized of an undivided three-fourths of the land in controversy, and this protestant was, as she had been from the death of her mother, and has ever since been, seized of the remaining undivided one-fourth thereof. There is no such thing as joint tenancy in Wyoming, and unless joint tenancy existed in Wyoming at the time of the death of Mrs. Wilson, together with the common law incident of survivorship, it is impossible to see how the said John B. Wilson ever had any right to the whole of his wife's estate in said land.

Under the law of Wyoming (R. S., Sec. 2972), a wife may hold and convey real estate in the same manner as other persons. She may take by the same tenure and subject to the same incidents, neither greater nor less, as though a feme sole. If no contrary intent, therefore, is expressed in the conveyance to them under the instrument under which they hold, the husband and wife take as tenants in common. The common law doctrine that husband and wife are one so completely that they conld not take by moieties does not prevail here. She takes in her own right in this State under such a deed either jointly with her husband or any one else, and then becomes tenant in common. Although a woman's marital rights are not entirely changed in this State, they are modified to such an extent that in relation to her property, real and personal, she may contract and be contracted with, sue and be sued, convey and receive conveyances, just as her husband may.

Section 2980 of the Revised Statutes provides that the separate deed of the husband shall convey no interest in the wife's lands.

If the separate deed of John B. Wilson could not have conveyed any interest in his wife's share of the land in controversy, how can the creditors of John B. Wilson, after his death and after her death, seize any part of her estate that was not vested in him by her death? (1 Wash. Real Prop., star p. 408; Tiedeman on Real Prop., Sec. 235; Miles v. Fisher, 10 O., 1; Hoffman v. Staggers, 28 Ia. 302.)

It was contended by counsel for the administrator in this estate upon the oral argument in the action of ejectment subsequently brought by the Blyth and Fargo Company against this protestant to obtain possession of the land in controversy, that Section 4741 of the Revised Statutes is relied upon. A cursory inspection of that section will suffice to convince the court that it has no application to such a case as the case at bar.

That section is taken from the California code with many changes in a vain attempt to adapt it to the laws of Wyoming. It provides that a homestead held by the husband or the wife, or either of them during coverture, selected from the common property, or from the separate property of the person selecting or joining in the selection of the same, vests on the death of the husband or wife absolutely in the survivor. It is clear that this statute has no application, because the title to the land in controversy was neither in the husband nor the wife, but was in both at the time of the death of the wife, which occurred first. So that the case at bar neither comes within the letter or the spirit of Section 4741. There is nothing in the record to show that the homestead was ever selected from the common property of the husband and wife, or from the separate property of either, or that either ever selected it or joined in the...