Fisher v. Fisher
| Decision Date | 02 February 1926 |
| Docket Number | 5037 |
| Citation | 207 N.W. 434,53 N.D. 631 |
| Court | North Dakota Supreme Court |
Appeal from the District Court of Ward County, Lowe, J.
Affirmed.
Order affirmed, with costs.
Benson & Benson, for appellant.
"That part of one's property which, after his death the law sets aside as an exemption to those dependent upon him, as in this case his surviving wife, is not a part of the property which passes by descent and distribution." Fore v Fore, 2 N.D. 260.
"The courts have held in a great many cases in this state that § 8725 is an exemption statute and that in order to be entitled to its benefits one must have brought himself within the letter and spirit of the laws relating to residence." Swingle v. Swingle, 36 N.D. 611; Fischer v. Dolwig, 39 N.D. 161; Krumenacker v Andis, 38 N.D. 500.
"A deed of separation is capable of subsisting after the death of one of the parties; and the question of whether it should be construed as operative thereafter or as restricted to the joint lives of the parties must depend upon the language of the instrument." 30 C. J. §§ 833--858.
"There is no question but what the relation of husband and wife constitutes a family, and that the husband is the head, under homestead and exemption acts." 4 L.R.A.(N.S.) 367; Dye v. Cooke, 88 Tenn. 275; Trotter v Dobbs, 38 Miss. 198; Chafee v. Rainey, 21 S.C. 11.
C. B Davis, for respondent.
A childless man, who lives apart from his wife, and has not contributed to her support for a period of years, is not the head of a family. 18 Cyc. 1401, D; 11 R. C. L. 503.
"The law contemplates a family, living together and existing as a family." Krumenacker v. Andis, 38 N.D. 512.
"Valid agreements between husband and wife as to the division of property in lieu of all other property rights cannot be set aside upon the death of either, and are binding as to the interests of each." 21 Cyc. 1596; McCubbin v. Patterson, 16 Md. 179; Fisher v. Clopton, 110 Mo.App. 663; Wallace v. Bassett, 41 Barb. 92; Aspsy v. Barry, 12 S.D. 220, 83 N.W. 91; Daniels v. Benedict, 38 C. C. A. 592, 97 F. 367 (Colorado Case).
PUGH, District Judge. NUESSLE, BIRDZELL, JOHNSON, and BURKE, JJ., concur. Mr. Chief Justice CHRISTIANSON did not participate, honorable THOS. H. PUGH, of the Sixth Judicial District, Sitting in his stead, by request.
Petitioner and John Fisher, both of Bottineau, North Dakota, were married January 25th, 1923. They lived together as husband and wife until on or about March 6th, 1923, at which time differences having arisen between them, they voluntarily entered into a written agreement, by the terms of which they released each other from all obligations of support and maintenance and agreed that they would thenceforth, during their natural lives, live separate and apart, and that they would conduct themselves toward each other and toward others as though they were single persons. The husband paid $ 230 to the petitioner at the time of the execution of this contract. Each of the parties fully performed the contract, and they did live separate and apart from that time, continuously, until the death of John Fisher, May 24th, 1924. There was no issue of said marriage. Defendant Burl Fisher became the administrator of the estate of John Fisher, deceased. The plaintiff made application to the county court praying that court to set over to her absolutely the personal property hereinafter described which she alleged was exempt to her as the widow. March 17th, 1925, the county court made an order therein to the effect that 21 promissory notes payable to decedent, each in the sum of $ 50, secured by real estate mortgage and the sum of $ 300 in cash be set apart to the petitioner as widow. Respondent appealed upon questions of law from the order of the county court to the district court of Ward County, where this matter was considered by that court upon a stipulation of the facts and the record made and returned by the county court. The order of the district court reversed, vacated and set aside the order appealed from, and directed the county court to enter an order denying the petition. From said order of the district court, the petitioner prosecutes this appeal.
Petitioner insists that said contract of separation is void because contrary to public policy, and that she, the surviving wife, by virtue of the provisions of § 8725, Comp. Laws 1923, is entitled to the property claimed by her as her exemptions.
The husband and wife may agree to an immediate separation, mutual consent thereto being a sufficient consideration. Comp. Laws 1913, §§ 4412, 4413. Where differences or dissentions have arisen between the parties, an agreement fairly made between husband and wife, providing for an immediate, or the continuance of an existing, separation will generally be held to be not contrary to public policy. 6 R. C. L. 709; 9 R. C. L. 524; 13 C. J. 426, 465. See also notes to Hill v. Hill, 12 L.R.A. N.S. 849, and Edleson v. Edleson, 2 A.L.R. 689. The separation agreement which is in evidence in this case is material to the determination of the question raised, only as it affects the status of the husband and wife in their relation to the exemption laws of the state prior to and at the time of the death of the husband. Section 8725 provides there shall be set aside absolutely to the survivor all the personal property of the decedent which would be exempt from execution if he were living, including property absolutely exempt and other property selected by the person entitled thereto to the amount in value of fifteen hundred dollars. This section of the code is a part of the exemption laws of this state. Fore v. Fore, 2 N.D. 260, 50 N.W. 712; Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524; Herr v. Herr, 45 N.D. 492, 178 N.W. 443.
Our exemption laws are pregnant with the suggestion that the family and the family relation must exist as the very basis of exemption rights. McCanna v. Anderson, 6 N.D 482, 71 N.W. 769. ...
To continue reading
Request your trial