Chadwick v. Chadwick

• Decision Date: 02 February 1887
• Citation: 6 Mont. 566
• Parties: CHADWICK and others v. CHADWICK.
• Court: Montana Supreme Court

6 Mont. 566

CHADWICK and others

v.CHADWICK.

Supreme Court of the Territory of Montana.

February 2, 1887.

Appeal from Third district, Lewis and Clarke county.

Petition in probate court for the decision of certain questions arising under the will of W. F. Chadwick. Judgment for petitioners. Defendants appealed.

Hedges & Miller, for appellants.

J. C. Robinson, for respondent.

GALBRAITH, J.

In this record there are two appeals, each from an order affirming the action and judgment of the probate court of Lewis and Clarke county, each of which was rendered upon an agreed statement of facts. These appeals, in our view of the case, may be determined together.

The first of the agreed statements was as follows, viz.: “The petition of Norma D. Chadwick, widow of the said Walter F. Chadwick, deceased, having been filed in said court in the above entitled proceedings, on the twenty sixth day of January, 1886, for a decree setting apart a homestead, upon which a decree was made by the said court on the ninth day of April, 1886, granting the prayer of said petition; and it being claimed by and on the part of said Norma D. Chadwick that she is entitled to the homestead so set apart to her in addition to the devise to her in the will of said Walter F. Chadwick contained; and it being claimed by and on the part of the other devises mentioned in said will that Norma D. Chadwick, having elected to take under the will, that said homestead, if allowed, should be charged to and made a part of the devise to her in said will contained, on the final distribution of said estate: Now, therefore, it is hereby stipulated and agreed, by and on the part of the several parties interested herein, by their respective attorneys, *** that on all the record papers and proceedings heretofore had in reference to the estate of Walter F. Chadwick, deceased, and upon the foregoing facts and statements, said controversy be, and the same is hereby submitted to the said probate court for its determination upon an argument, at a date to be fixed by the court.”

The questions submitted are as follows, viz.: “Whether the said Norma D. Chadwick is entitled to said homestead, and, if so, shall it be in addition to the devise to her in said will contained; or whether said devise to her shall be charged with the said homestead, or the appraised value thereof; all parties hereto waiving any irregularity or failure to appeal from any order made herein relative to the setting apart of said homestead, and all parties reserving the right to appeal from the decision of the said court upon the questions hereby submitted.”

The second stipulation and statement of facts was as follows, viz.: “On the sixth day of April, 1882, the said Walter F. Chadwick made and executed his last will and testament, a copy of which is hereto attached, marked ‘Exhibit A, ’ and hereof made a part; that, after the execution of said will, the said W. F. Chadwick made and executed a certain deed, a copy of which is hereto attached, marked ‘Exhibit B,’ and hereof made a part; and, at or about the same time, the said Walter F. Chadwick and Charles A. Broadwater executed an agreement, a copy of which is hereto attached, marked ‘Exhibit C,’ and hereof made a part; that said deed and agreement were deposited with and left in the Montana National Bank of Helena, M. T.; that on the twentieth day of January, 1885, a statement or agreement, referring to said deed and agreement marked ‘B’ and ‘C,’ was made and signed by said W. F. Chadwick and C. A. Broadwater, a copy of which is hereto attached, marked ‘Exhibit D,’ and hereof made a part; that on the eighteenth day of August, 1865, the said Walter F. Chadwick entered into a new and modified agreement, concerning said deed with Charles A. Broadwater, a true copy of which is hereto attached, marked ‘Exhibit E,’ and hereof made a part, which said modified agreement was also deposited in the Montana National Bank of Helena, M. T.; that thereafter, and on the twentyeighth day of September, the said Walter F. Chadwick died; that on the nineteenth day of October, 1885, the said last will and testament of said Chadwick was duly admitted to probate in the probate court of said county of Lewis and Clarke, in said territory, and forms a part of the record in the matter of said estate, to which reference is hereby made; that on the thirty-first day of December, 1885, the said Broadwater paid to the executors of the will of said Walter F. Chadwick the sum of $22,500, as provided by said agreement, (Exhibit E,) for said mining property named and described in said deed, under and pursuant to said agreement, (Exhibit E,) for the use and benefit of the estate of said Chadwick; that on the said thirty-first day of December, 1885, and after said payment, the said Montana National Bank delivered to the said Charles A. Broadwater the said deed, in pursuance of said agreement, (Exhibit E.) It is now claimed on the part of the said Norma D. Chadwick that, under and pursuant to the terms of said will of Walter F. Chadwick, she will be entitled, upon the final distribution of said estate, to the whole of said sum of $22,500 so paid as above stated, as a part of the personal estate of the said Walter F. Chadwick bequeathed to her. It is claimed upon the part of the other devises named and designated in said will that said sum of $22,500, so paid in after the death of said Walter F. Chadwick, and after the probate of said will, should be considered and treated in the settlement and distribution of the estate of said Chadwick as a part of the real estate and mining property, devised by said will, and that it will be distributed as such, upon such final settlement, one-half thereof going to Norma D. Chadwick, and the remaining one-half thereof to be distributed to the other devisees, share and share alike. Now, therefore, it is hereby stipulated and agreed, by and upon the part of the several parties interested herein, by their respective attorneys, that on all the records, papers, and files in the above-entitled proceeding, or hereinbefore mentioned or referred to, and upon the foregoing statement of facts, said questions and controversy be, and the same is hereby, submitted to the said probate court for its determination, upon an argument to be made before said probate court, at a time to be designated by said court, all parties hereto waiving any irregularity herein, either upon this hearing, or...