In Re James' Estate

• Decision Date: 20 December 1916
• Docket Number: 3901
• Citation: 160 N.W. 525,38 S.D. 107
• Parties: IN THE MATTER OF THE ESTATE OF WALTER H. JAMES, DECEASED. JAMES T. BIGELOW, Administrator with the Will annexed of the Estate of Walter H. James, deceased, Plaintiff and respondent, v. HENRY A. BOOTH, Executor of the Last Will and Testament of Clara Jones, deceased, Defendant and Appellant.
• Court: South Dakota Supreme Court

38 S.D. 107, 160 N.W. 525 (1916)

IN THE MATTER OF THE ESTATE OF WALTER H. JAMES, DECEASED.

JAMES T. BIGELOW,

Administrator with the Will annexed of the Estate of Walter H. James, deceased,

Plaintiff and respondent,

v. HENRY A. BOOTH, Executor of the Last Will and Testament of Clara Jones, deceased,

Defendant and Appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Moody County, SD

Hon. Joseph W. Jones, Judge

#3901—Reversed

Ira F. Blewitt

Attorneys for Appellant.

George Rice, Lewis Benson

Attorneys for Respondent.

Opinion filed December 20, 1916. Rehearing denied February 7, 1917

GATES, J.

Clara James died at Flandreau in this state, in February, 1944, leaving real and personal property in Moody county, and real property outside this state. By her last will she bequeathed to her husband, Walter H. James, the sum of $50 and also the sum of $942, theretofore recently loaned to him by her, and as stated in the will: "This to be his full share of my estate." Testatrix left no minor children surviving her. Shortly thereafter the said Walter H. James entered again into the bonds of matrimony, and in April, 1914, he died testate. In September, D914, the present plaintiff, as administrator with the will annexed of his estate, filed a petition in the estate of Clara James, asking among other things, that the sum of $750 be set apart to him under the provisions of section 154, Prob. Code. Upon the hearing of said petition, the county court found that the estate of Clara James consisted of real estate and of the sum of $466.67 in money, and that both of said deceased persons were, at the time of the death of Clara James, nonresidents of South Dakota, and were residents of California. Because of such nonresidence, and because it concluded as a matter of law that the right to claim such exempt property was a personal privilege which did not survive, the county court denied the application. Upon appeal the circuit court, without making any finding of fact as to the residence of Clara and Walter H. James, rendered judgment, awarding to plaintiff the said sum of $466.67. From such judgment and an order denying a new trial, defendant appeals.

The appellant urges for our consideration, three propositions: (a) That such allowance is not available to a nonresident; (b) that if available to a nonresident, it did not survive his death; (c) that if available to a nonresident it was waived.

Section 154, Prob. Code, provides, the italics being ours:

"In addition to the property mentioned in the preceding section, there shall also be allowed and set apart to the surviving wife or husband, or the minor child or children of the decedent, all of such personal property or money as is exempt by law from levy and sale on execution, or other final process from any court to be with the homestead, possessed and used by them; and the executor or administrator must make and return a separate and distinct inventory thereof in the same manner as required for the property mentioned in the preceding section, and no such property shall be liable for any prior debts or claims against the decedent, except when there are no assets, thereunto available for the payment of the necessary expenses of his last illness, funeral charges and expenses of administration."

This section and the preceding section in relation to the homestead and the absolutely exempt property have been considered by this court in Hesnard v. Plunkett, 6 SD 73, 60 NW 159, Morgan v. Beuthein, 10 SD 650, 75 NW 204, 66 AmStRep 733, Wells v. Sweeney, 16 SD 489, 94 NW 394, 102 AmStRep 713, Meyer v. Meyer, 25 SD 596, 127 NW 595, and by the Supreme Court of our sister state in Fore v. Fore, 2 ND 260, 50 NW 712, and by the territorial court in Territory ex rel. Hall v. Bramble, 2 Dak. 189, 5 NW 945, but the question of the availability of the allowance to a nonresident has never been directly decided in the Dakotas. The cases on this question are collated in 21 LRA 241, and 11 LRA (NS) 361. Section 153, Prob. Code, was amended by Chapter 236, Laws 1913. Section of that chapter purports to amend sections 153, 155, and 156 of the Revised Political Code, but by reference to the subject-matter and to, the title of the act, and to the subject-matter of those sections of the Political Code, it is apparent that the word "Political" is a clerical error, and that it was the Probate Code that was intended to be amended. Section 153, as thus amended, makes it entirely clear that the homestead and the absolutely exempt property are only available in a case a homestead has been selected, or is entitled to be selected. It is clear, therefore, that section 153 does not contemplate the allowances therein provided for to a nonresident.

It is claimed by respondent that section 154, Prob. Code, is a statute of succession, but such is not the case. The allowance therein provided for is not in the nature of an interest in property, it is merely a preferred claim against the estate of a decedent which may or may not be available according to the circumstances. Wilson v. Wilson, 55 Colo. 70, 132 Pac. 70. It is a limitation upon the power of the testator to bequeath. Church, Prob. Law & Pr. 567; Meyer v. Meyer, supra; Re Estate of Huelsman, 127 Cal. 275, 59 Pac. 776.

What is it that is allowed to the surviving wife or husband, or minor child, or children by section 154, Prob. Code?

It is not, by the terms of that section, money or personal property of the value of $750. It is not specific personal property. No, it is:

"All such property or money as is exempt by law from levy and sale on execution or other final process."

In other words, it is the exempt property that is allowed and set apart to the surviving wife or husband or minor child, or children. Now in order to find out what that exempt property is, recourse must be had to other provisions of law. By section 346, C. C. P., a debtor who is the head of a family may, in addition to the homestead and certain other absolute exemptions, claim as exempt money and personal property to the value of $750, known among the profession as "additional exemptions," or in lieu thereof, by section 347, C. C. P., he may claim as exempt certain specific property, commonly referred to as "specific alternative exemptions." Section 348, C. C. P., also provides for the setting apart of the proceeds of a limited amount of life insurance to the surviving widow, husband, minor child, or children. But section 363, C. C. P., provides that exemptions other than those made absolute are not available to a nonresident, and, as above shown, section 346, Prob. Code, provides that such exemptions are only available to heads of families. Manifestly the concern of the Legislature of South Dakota is with South Dakota families. This state owes no duty to California families. Woerner in his work on the Law of Administration says, in section 77:

"These provisions, like the kindred subject of the homestead exemption laws, are of purely American origin. They owe their existence to a humane and benevolent consideration of the distress and helplessness of widows and orphans newly bereft of their protector and supporter, and to wise public policy, recognizing the true relation of the state to, the family as its organic, constituent element. The protection of the family, says Thompson in his valuable work on Homesteads and Exemptions, from dependence and want is the expressed object of nearly all the homestead and exemption laws; the immunities enacted by these statutes are extended to this association of persons, or to the head thereof, for the benefit of all its members. The...