In re Estate of McVay

• Decision Date: 20 May 1907
• Citation: 14 Idaho 56,93 P. 28
• Parties: In the Matter of the Estate of DAVID H. MCVAY, Deceased
• Court: Idaho Supreme Court

93 P. 28

14 Idaho 56

In the Matter of the Estate of DAVID H. MCVAY, Deceased

Supreme Court of Idaho

May 20, 1907

ESTATE OF DECEASED PERSON-SETTING APART HOMESTEAD AND EXEMPT PROPERTY TO WIDOW-MONEY DEPOSITED IN LIEU OF UNDERTAKING ON APPEAL-AGREEMENT OF SEPARATION BETWEEN HUSBAND AND WIFE-SPECIAL FINDINGS OF JURY.

1. Under the facts of this case, held, that where a widow makes application to have a homestead set apart out of the real estate belonging to the estate of her deceased husband, and the probate court refuses to grant the petition and an appeal is taken to the district court where a demurrer is interposed to the petition on the ground that it does not state facts sufficient to entitle her to a homestead, and the court sustains such demurrer and permits the petitioner to amend her petition, where it appears that the petition was sufficient without any amendment, the cause will not be reversed on the ground of the error of the court in permitting an amendment.

2. As both parties proceeded upon the theory that the district court might try this matter de novo, it is not necessary for us to decide whether on such appeals the district court may try the case anew.

3. Under the provisions of sec. 4778, Rev. Stat., a deposit of money equal to the amount of the required undertaking may be received in the place of the undertaking on appeal.

4. Under the facts of this case, held, that the separation of the husband and wife was not permanent and was caused by his cruel and inhuman treatment, and that such separation was not voluntary and not intended by her to be permanent.

5. Under the provisions of sec. 4231, Rev. Stat., the court in every stage of an action must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

6. Held, that the real estate referred to at the time of the decedent's death could have been selected for a homestead under the laws of this state by either himself or his wife.

(Syllabus by the court.)

APPEAL from the District Court of Fremont County. Hon. J. M Stevens, Judge.

Appeal from the district court, on an appeal from the probate court on the petition of the widow, to have set aside to her the homestead out of the real estate of her deceased husband. Petition granted. Affirmed.

Judgment affirmed with costs in favor of the petitioner.

Caleb Jones, for Appellant.

Sec. 20 of art. 5 of the constitution gives only to the district court original jurisdiction in all cases of law and equity but does not give the district court original jurisdiction in matters of probate. Sec. 21, of art. 5, of the constitution has made probate courts courts of record, and has conferred on them original jurisdiction in matters probate, and in the settlement of estates of deceased persons and the appointment of guardians.

If all the facts were taken as absolutely true in the petition, those facts would not have entitled petitioner to a homestead under the provisions of secs. 5440 and 5441, Rev. Stat. It is not even stated or alleged that Americus J. McVay, or her deceased husband, were residents of the state of Idaho. It does not show that they were in possession or that they were residing on the property (Waple's Homestead and Exemption, 1893 ed., pp. 175, 176), nor does it show she was a member of the family of the said decedent, as required by the statutes, nor does it show or give an estimate of the cash value of said property, nor does it show that they were residing on the property or even had possession or control of it.

The petition did not show jurisdiction in the district court to set aside a homestead as prayed for in that petition. Further, the district court has no jurisdiction to try the matter involved in the appeal from the probate court because of respondent's failure to file requisite undertakings or make the requisite number of deposits in lieu of the undertakings. These rules of construction would seem to apply with added force to deposits in lieu of undertakings. Which of these appeals was the deposit made for?

Soule & Soule, for Respondents.

It is the duty of the probate court, "on his own motion or on petition therefor," to set apart a homestead to the surviving widow. (Rev. Stats. 1887, sec. 5441; Cal. Code Civ. Proc., sec. 1465.)

The word "may" in this statute means "shall." The probate court has no discretion in this matter. (In re Estate of Ballentine, 45 Cal. 696.)

The appeal being on questions of both law and fact, this action is to be tried anew in the district court. (Rev. Stats. 1887, sec. 4840.)

The court has the same power to grant relief, by amendment and otherwise, as in actions commenced in the district court. (Rev. Stats. 1887, sec. 4841; Smith v. Gill, 37 Minn. 455, 35 N.W. 178.)

When the petitioner had properly filed and served her notice of appeal, and deposited the money, she had perfected her appeal, as she had done all the law required of her.

It would seem from the statute that the money is not to be transmitted to the clerk of the district court with the record, but held by the probate court as was done in this case. (Rev. Stats. 1887, sec. 4778.) There is no law in Idaho which required the respondent to file any petition at all. She could make her application orally if she saw fit.

Since the law does not require a petition in writing, the court cannot require one. For this reason there is no jurisdictional question involved on the petition one way or another, and the rulings of the district court in relation to the respondent's petition, or any other rulings that the trial court might have made, are immaterial.

SULLIVAN, J. Ailshie, C. J., concurs. Stewart, J., did not sit at the hearing or take any part in the decision.

OPINION

SULLIVAN, J.

This is an appeal from the judgment of the district court setting aside certain real estate and personal property to Americus J. McVay, widow of David H. McVay, deceased, and holding that said property is community property of the said McVays, it having been acquired by them during the existence of their marriage.

It appears from the record that the said McVays were married at Edgemont, South Dakota, in 1897, and soon after came to Idaho. On the 21st of July, 1898, they settled upon the land in controversy, which at that time was unsurveyed public land. Mrs. McVay at that time paid one George Summers $ 205 from her separate estate for his squatter's right to said land. Thereafter, David H. McVay entered said land under the desert and homestead laws of the United States, and by reason of such entries acquired title to said land from the United States while he and his said wife were residing upon said land.

The record shows that Mrs. McVay resided upon said land with the deceased until she was compelled by his cruel treatment toward her to leave his home and reside elsewhere. It appears from the record that the McVays entered into some kind of an arrangement on or about November 9, 1904, whereby he was to furnish her $ 1,500, and she was to go away; that sometime in November she left her home and went to the state of Missouri; and thereafter returned to Colorado and came back to Idaho in 1905. It appears that in March, 1905, McVay leased the land and personal property in question to one Oleson. Oleson took possession thereof, and McVay resided there with him, until about the middle of May, when he became sick and went to St. Anthony, the county seat of the county in which said land was situated. He remained there some weeks, and was finally taken to St. Mark's Hospital, in Salt Lake City, Utah where he died on the 13th or 14th day of July, 1905. His remains were brought back to Fremont county, Idaho, and buried there.

It appears that on the 13th day of June, 1905, the said David M McVay executed his last will and testament, bequeathing to said Levi Oleson all of his property, both real and personal, which will and testament was filed in the probate court of Fremont county, on the 20th day of July, 1905, and the time fixed for hearing the petition for admitting said will to probate. At the time fixed, at the request of the attorney for the petitioner, the matter was postponed until the 11th day of September, 1905. It seems that a contest had been filed prior thereto, but the will was admitted to probate on the 15th day of September, 1905. Thereafter, on the 17th day of October, 1905, the widow presented her petition, praying that the court select, designate, and set apart a homestead out of the real property of the deceased for her exclusive use and benefit, which matter was presented to the court and taken under advisement, and was thereafter denied by the court. Thereafter an appeal was taken to the district court from said order refusing to set apart a homestead to the said widow, and also from an order refusing to set apart the exempt personal property to said widow. Thereafter the executor demurred to the petition of the widow on the ground that her...