Clark v. Clark

• Decision Date: 17 April 1952
• Docket Number: No. 9131,9131
• Citation: 242 P.2d 992,126 Mont. 9
• Parties: CLARK v. CLARK et al.
• Court: Montana Supreme Court

Page 992

242 P.2d 992

126 Mont. 9

CLARK v. CLARK et al.

No. 9131.

Supreme Court of Montana.

Submitted Jan. 18, 1952.

Decided April 17, 1952.

Paul T. Keller, Helena, for appellant.

Michael G. Chilton, Helena, Frank G. Monroe, Los Angeles, Cal., for respondent. Michael G. Chilton argued the case orally.

FREEBOURN, Justice.

William A. Clark died testate on January 12, 1921, leaving surviving him a widow, Susan B. Clark, and his two sons, Houghton Clark and William A. Clark, Jr. The widow elected not to take under the will but to take her dower interest under the statute. She and the Union Bank and Trust Company were appointed to execute the will. The estate appears to have been insolvent, but in 1950 certain unpatented mining claims, part of the assets of the estate, were sold and $22,000 realized.

The bank, having the money in its possession as executor, failed to pay the widow her share thereof. She brought this action, filed August 9, 1950, against the bank and her sons, and asked that she be allowed her dower right of one-third of the lands and assets of the estate. The sons filed written waivers of their right to plead to the complaint and agreed their defaultscould be taken and judgment entered against them.

In a so-called affirmative defense set out in its answer the bank alleged the estate was insolvent and 'that all of the assets must be applied to the payment of creditors,' and that the bank 'does not know to whom the said sum belongs and desires a court order to determine whether or not there is a dower interest in said proceeds from said unpatented mining claims.'

Written motion for judgment on the pleadings, made by plaintiff, was granted, and judgment was entered for the relief prayed for by plaintiff in her complaint.

The bank appealed from this judgment. The bank's contention, that the claims of creditors of the estate must be paid before the widow receives her share cannot be upheld.

The general rule announced by this court in Swartz v. Smole, 91 Mont. 90, 5 P.2d 566, 567, '* * * is that the rights of the husband's creditors are subordinate to the widow's claim of dower, unless on debts constituting a special charge upon the land before coverture, or at the time of the acquisition of the land and as a part of the same transaction (19 C.J. 491), and the insolvency of the husband's estate does not affect the widow's right of dower, unless otherwise provided by statute (Id., 492).

'The right of dower, since its adoption in early Anglo-Saxon times, has always been highly esteemed in the law, as a means of providing for the sustenance of the widow and the education of minor children. 'Lord Bacon said, as early as 1641 that there was then 'the common byword in the law that the law favored three things, (1) life, (2) liberty, (3) dower;" consequently, courts should be ever vigilant in watching over the widow's interests. 9 R.C.L. 563; Mathews v. Marsden, 71 Mont. 502, 230 P. 775; Shepherd & Pierson Co. v. Baker, 81 Mont. 185, 262 P. 887.'

The question then is whether a wife has a dower interest in an unpatented mining claim possessed by her husband at the time of his death.

R.C.M. 1947, § 22-101, defines dower: 'A widow shall be endowed of the third part of all lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form. When a wife joins with her husband in the execution of any conveyance of land, she thereby relinquishes her inchoate right, and shall not thereafter have dower therein, except that in case of sale under mortgage signed and executed by herself and husband she shall have a right of dower in the surplus. Equitable estates shall be subject to the widow's dower, and all real estate of every description, contracted for by the husband during his lifetime, the title to which may be completed after his decease.'

The terms 'lands' and 'real estate', as used in the statutes of Montana, are synonymous. Black v. Elkhorn Mining Co., 9 Cir., 49 F. 549, affirmed 9 Cir., 52 F. 859, affirmed, 1896, 163 U.S. 445, 16 S.Ct. 1101, 41 L.Ed. 221. This usage of the terms 'land' or 'lands' is almost the universal rule. Griffin v. Clark, 55 Idaho 364, 42 P.2d 297; Krouser v. County of San Bernardino, 29 Cal.2d 766, 178 P.2d 441.

'The words 'real property' are co-extensive with lands, tenements, hereditaments and possessory titles to public lands.' R.C.M. 1947, § 19-103, subd. 2. See also R.C.M. 1947, §§ 67-207, 67-208.

In State ex rel. Baker v. District Court, 24 Mont. 330, 61 P. 882, this court discussed the nature of an unpatented mining claim: 'Neither the statutes nor the courts in this state recognize any distinction between possessory rights to mining claims upon public lands, and real estate held under other titles. While recognizing the United States as the paramount proprietor, the legislature and the courts have always treated the claimant under a perfected location as the owner of the fee. Indeed, the location operates as a grant from the government; and the estate acquired under it is a vested right to the fee, which becomes absolute upon the performance of the required conditions. It can be lost only by abandonment, or by forfeiture and location by another. It is property, in every sense of that term, and except, in the particular just noted, it has all the attributes of real estate.'

In Cobban v. Meagher, 42 Mont. 399, 113 P. 290, 292, this court quoted from Judge Clayberg's article on Mines and Minerals in 27 Cyc. 580: 'The courts have declared it [an unpatented mining claim] property in the highest sense of that term, which may be bought, sold, and conveyed, and which passes by descent.' Accord: Butte Hardware Co. v. Frank, ...