Bowman's Estate, Matter of

• Decision Date: 17 April 1980
• Docket Number: No. 12706,12706
• Citation: 101 Idaho 131,609 P.2d 663
• Parties: In the Matter of the ESTATE of Dorothy L. BOWMAN, formerly Dorothy L. Cruse, Deceased. Lyle A. SHAW, Petitioner-Appellant, v. William E. BOWMAN, Contestant-Respondent.
• Court: Idaho Supreme Court

Page 663

609 P.2d 663

101 Idaho 131

In the Matter of the ESTATE of Dorothy L. BOWMAN, formerly Dorothy L. Cruse, Deceased.

Lyle A. SHAW, Petitioner-Appellant, v. William E. BOWMAN, Contestant-Respondent.

No. 12706.

Supreme Court of Idaho.

April 17, 1980.

Wilfred W. Longeteig, Craigmont, and E. Don Copple, Boise, for petitioner-appellant.

William J. Dee and W. C. MacGregor, Jr., Grangeville, for contestant-respondent.

McFADDEN, Justice.

This is an appeal from a portion of a judicial order appointing William E. Bowman, contestant-respondent, the personal representative of the estate of his deceased wife, Dorothy L. Cruse Bowman. Also appealed is the order granting the respondent Bowman a homestead and family allowance from the deceased's separate property. Other parts of the order are not contested.

In 1966, the deceased, while still married to her first husband, Cyril C. Cruse, executed a will leaving certain personal effects to her daughter, Dianna Lee, and the remainder of her estate to her husband, Cyril Cruse. Cruse was named executor of the estate. The will provided that in the event that Cruse should predecease her the estate was to be divided equally between her daughter and son, Cyril Jr.; Lyle A. Shaw, petitioner-appellant, was to be named executor. Mr. Cruse died shortly after the will was executed. The widow married the respondent in 1969. No changes were made in the will during her marriage to the respondent.

Mrs. Bowman died on October 6, 1976, leaving three survivors, namely, her husband, respondent Bowman, and the two children from her first marriage. Shaw, the alternate executor named in the will filed an application for informal probate of the will and sought to be appointed personal representative. The application was granted and Shaw appointed personal representative. Subsequently Bowman filed a petition for adjudication of intestacy, determination of heirs, appointment of administrator and objections to the alleged will. In addition to this petition, he also filed petitions to set aside exempt property, for allowance of a homestead, and for a family allowance.

Following a court trial, the court decreed that Bowman be appointed personal representative, that he receive his share of the estate as though the testatrix died intestate, giving him all of the community property and one-half of the separate property (approximately $8,000). ¹ The court set aside $3,500 as an exempt property allowance, ² $4,000 as a homestead allowance ³ and $500 per month as a family allowance, ⁴ payable as of the date of decedent's death "but not to exceed in any event Twelve (12) months or a maximum of Six Thousand Dollars ($6,000.00) for such family allowance." The court also decreed that the homestead allowance, exemption of property and family allowance have priority over all claims against the estate and "should come first from the one-half (1/2) share of decedent's property which is not passing to the surviving spouse." The balance of decedent's separate property, if any, was to be distributed to decedent's heirs as named in her last will and testament.

Appellant, the personal representative, presents four issues on this appeal:

1. Whether decedent's will, executed at a time when former I.C. Title 14, Ch. 3, was in effect, was revoked by her subsequent remarriage where her death occurred after the effective date of the Uniform Probate Code (July 1, 1972), insofar as the appointment of a personal representative is concerned.

2. Whether before an award of a homestead allowance (under I.C. § 15-2-401), the applicant for allowance has the burden of proving the statutory prerequisite that "no homestead has been selected during life."

3. Whether the record justifies and supports the award of a family allowance in light of the requirement of I.C. § 15-2-403 that the surviving spouse must have been in fact . . . supported by the decedent.

4. Whether Shaw, the appellant, should be awarded attorney fees on appeal.

We will consider these issues in the same order as presented.

I.

Basically, the first issue is whether the trial court erred in appointing Bowman as the personal representative of the estate. The trial court found, on what we consider substantial evidence:

"That the estate is of limited means, and after payment of the family allowance . . . and setting aside exempt property and homestead (allowance) there will be little, if any, estate left to distribute to any heirs other than the surviving spouse. That it would be inequitable and an unnecessary hardship on the estate to appoint any other person than the surviving spouse as the personal representative, particularly where it appears, as it does in the present case, that after setting aside such allowances . . . that the estate may be inadequate to discharge anticipated unsecured claims."

The court then concluded that Bowman, the surviving spouse, should be appointed personal representative, and entered its decree accordingly. It is our conclusion that the trial court erred in this regard.

Neither party questions whether decedent's will was revoked by the death of her former husband, Mr. Cruse. Nor do either of the parties seriously question, nor do we doubt, that under the facts of this case that the will was not revoked by decedent's subsequent marriage to Bowman. I.C. § 15-2-508 and comments to official text. See Re Estate of Comassi, 107 Cal. 1, 40 P. 15 (1895); Re Burton's Will, 4 Misc. 512, 25 N.Y.S. 824 (1893); Parker v. Foreman, 252 Ala. 77, 39 So.2d 574 (1949); 9 A.L.R.2d 505; Annot. Remarriage as Revoking Will, 9 A.L.R.2d 510.

I.C. § 15-3-203 ⁵ establishes the priority for appointment of personal representatives. It is our conclusion that those provisions are mandatory and not to be disregarded. See Vaught v. Struble, 63 Idaho 352, 120 P.2d 259 (1941), where this court in interpreting the previous probate code (I.C.A. 15-312) held such provisions mandatory and not to be disregarded.

Respondent Bowman, however, asserts that the trial court's ruling that he be appointed as personal representative can be upheld on the theory that by reason of his claim for a family allowance that he is a creditor of the estate within the meaning of I.C. § 15-3-203(b)(1). Assuming that all other conditions to bring that provision into effect are met by this record, we disagree. I.C. § 15-1-201(5) defines for the purpose of the Uniform Probate Code the term "claim." In Estate of Hutchinson, 577 P.2d 1074 (Alaska 1978), the Supreme Court considered whether a family allowance was a "claim" within the meaning of AS 13.06.050(4), which definition in the Alaskan statute is identical to that of I.C. § 15-1-201(5). That court held that a family allowance was not a claim, and in reaching this conclusion the court stated:

"That (the fact that a family allowance is not a claim) is a permissible reading of the section because family allowances are not specifically included there as are, for example, expenses of administration. The wording of AS 13.11.135(a) (same as I.C. § 15-2-403) itself casts doubt on whether family allowances were meant to be included within the meaning of the word 'claims.' It states that family allowances have priority over 'all claims not all other claims.' Moreover, the recipient of a family allowance is treated by other sections of the code as a 'distributee' rather than as a 'claimant' " (I.C. §§ 15-3-906, 15-3-909, and 15-3-1004). 577 P.2d at 1076.

The analysis of the Alaskan court is persuasive. Shaw, who was named in the will as the person to serve as the executor, now personal representative, should have been continued in that appointment. Thus the trial court erred in its conclusion of law that respondent Bowman should have been appointed.

2.

The second issue involves the validity of the respondent's claim for a homestead out of the estate. In his petition for allowance of a homestead respondent alleged that he was the surviving spouse of the decedent and that they were domiciled together in Riggins, Idaho County, Idaho, and that he was still domiciled there; that decedent died possessed of community property and certain separate property, i. e., a residence sold during her lifetime for approximately $18,000, as well as a lot in Riggins, and other personal property which was her separate property. In his petition no mention was made of any other homestead ever having been selected during decedent's life. I.C. § 15-2-401 ⁶ provides for the allowance of a homestead to a surviving spouse of $4,000, or of $10,000 if there are dependent issue living with the surviving spouse. At the time of adoption of the Uniform Probate Code, the legislature modified the Uniform Act by adding the first sentence, "(i)f no homestead has been selected during life and set aside . . . ." Appellant filed no answer or denial of any of the facts alleged in respondent's petition. However, after respondent presented his proof at the hearing on his various petitions, appellant argued that the homestead allowance should be denied on the basis that the statutory requirements had not been put into evidence. He contended that under I.C. § 15-2-401 a showing that no prior homestead had been set aside during life was a prerequisite for claiming a probate homestead under the statute. We disagree with the appellant's contention.

In general, homesteads enjoy a favored status with the courts. Because of such favor, it has been held that all reasonable presumptions consistent with good faith should be indulged in favor of one claiming a homestead. 40 C.J.S. Homesteads § 196 p. 671; 40 Am.Jur.2d Homestead § 11 p. 123. In Smith v. Tang, 100 Ariz. 196, 412 P.2d 697, 704 (1966), the court held that the right to a probate homestead could not be waived by an antenuptial agreement not clear and explicit as to what rights were being waived, the award being a right given by statute with the underlying purpose of such an award to insure a home for the surviving spouse....