In re Schenk's Estate

• Decision Date: 21 January 1919
• Docket Number: 3282
• Parties: In re SCHENK'S ESTATE
• Court: Utah Supreme Court

178 P. 344

53 Utah 381

In re SCHENK'S ESTATE

No. 3282

Supreme Court of Utah

January 21, 1919

Rehearing Denied February 11, 1919.

Appeal from the District Court of Cache County, First District; Hon J. D. Call, Judge.

In the matter of the estate of Samuel Schenk, deceased. On petition of testator's widow for summary administration of the estate, praying the same to be set apart to her as a homestead right after payment of the debts and expenses of administration.

From judgment denying her application, and dismissing the petition, the widow appeals.

AFFIRMED.

George Q. Rich for appellant.

C. W Dunn and Walters & Harris for respondent.

THURMAN J. CORFMAN, C. J., and WEBER, and Gideon, JJ., FRICK, J., concurring.

OPINION

THURMAN, J.

Samuel Schenk, of Providence, Utah, died in June, 1901, leaving a widow surviving him, and also several adult children by a former marriage. By last will and testament he gave all his personal property to his wife, and all his real property to her for her use and benefit during her life "but not to sell or dispose of."

The widow resided upon the property and used the same for her support until 1916, when she presented the will for probate. The will was duly admitted, and John Schenk, son of the deceased, was appointed executor according to the terms of the will.

In due course of administration an inventory was filed showing the estate to consist of a small house and lot in Providence and about two acres of farming land in the immediate vicinity--all of the value of $ 1,650. Upon application of the widow a temporary allowance was made for her support until the further order of the court. The estate was all sold to pay this allowance and other expenses, and a final account was rendered showing a balance in the hands of the executor in the sum of $ 1,079.41. The executor then filed a petition for final distribution of the estate, detailing the material facts in such cases, among other things setting out the provisions of the will, and that the widow had renounced the same and was therefore entitled to have one-third in value of the residue of the estate distributed to her under the law of succession. The petition alleged that the other devisees under the will should have distributed to them the remainder of the estate. The widow, answering said petition, denied that the other devisees were entitled to any of the property, alleging that it was homestead property, and that she, under the provisions of Comp. Laws Utah 1907, sections 2829, 3847, was entitled to all the residue of the estate. She also represented that she was the surviving widow of the deceased, seventy-four years of age, in declining health, and had no separate property for her support and maintenance; that she had never accepted the provisions of the will made in her favor, excepting the use of the property, until it was taken into possession by the executor, said property all being exempt from execution. The widow, at the same time, filed a formal petition praying for the summary administration of the estate, and that the same be set apart to her as a homestead right, after payment of the debts and expenses of administration.

The facts as to the widow's pecuniary and physical condition and the condition of the estate, as alleged, were all admitted by the executor, and were so found by the court. It also found that she needed all of the estate for her support, but, as conclusions of law, the court found it had no authority, under the sections of the statutes referred to, especially in view of the terminal sentences thereof, to make a summary distribution of the estate or to set it apart as a homestead as prayed for in the petition, as against the provisions of the will, and ordered that the application be denied and the petition dismissed. The widow appealed and assigned as error these rulings of the court.

The conclusions of the court were based upon the fact that the widow by not accepting the provisions of the will, as provided in section 2827 of the laws above referred to, was conclusively presumed to have renounced such provisions and to have accepted her distributive share, as provided in section 2826, which amounted to only one-third of the value of the property. In order to determine the questions submitted for our decision it is convenient at this point to set out in full the several sections of the Complied Laws, above referred to, which, in our judgment, are controlling:

2731. "Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in chapter 4 of this title, being chargeable in both cases with the payment of all the decedent's debts as provided by law: Provided, that a married man shall not devise away from his wife more than two-thirds in value of his legal or equitable estates in real property without her consent in writing."

2826. "One-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him: Provided, that the wife shall not be entitled to any interest under the provisions of this section in any such estate of which the husband has made a conveyance when the wife, at the time of the conveyance, is not or never has been a resident of the territory or state of Utah. Property distributed under the provisions of this section shall be free from all debts of the decedent, except those secured by mechanics' or laborers' liens for work or labor done or material furnished exclusively for the improvement of the same, and except those created for the purchase thereof, and for taxes levied thereon. The value of such part of the homestead as may be set aside to the widow shall be deducted from the distributive share provided for her in this section. In cases wherein only the heirs, devisees, and legatees of the decedent are interested, the property secured to the widow by this section may be set off by the court in due process of administration."

2827. "If the husband shall make any provision by will for the widow, such provision shall be construed to be in lieu of the distributive share secured by the next preceding section, unless it shall appear from the will that the decedent designed the testamentary provision to be additional to such distributive share, in which case the widow shall be presumed to have accepted both such testamentary provision and such distributive share. If, however, it does not appear from the will that its provision for the widow is additional, then the widow shall be conclusively presumed to have renounced such provision, and to have accepted her distributive share, unless within four months after the admission of the will to probate, or within such additional time before distribution as the court may allow, she shall, by written instrument filed with the clerk of the court, accept the testamentary provision, which acceptance shall be construed to be a renunciation of her distributive share. In the event that the wife shall be insane or incompetent, or absent from the state, an election shall be made for her by a general guardian, if she have one, or by a special guardian for the purpose, appointed by the court."

2829. "A homestead consisting of lands and appurtenances not exceeding in value the sum of $ 2,000, and $ 250 additional for each minor child, together with all the personal property exempt from execution, shall be wholly exempted from the payment of the debts of the decedent, and shall be the absolute property of the surviving husband or wife and minor children, or of the minor children in case there be no surviving husband or wife, to be set apart on petition and notice, at any time after the return of the inventory: Provided, that the homestead selected shall be subject to any incumbrances given for the purchase price or by the consent of both husband and wife, and to mechanics' liens. This section shall not be construed to prevent the disposition by will of the homestead and exempt personal property." (Italics ours.)

3847. "After the return of the inventory, the court may, on petition and after notice, set apart and distribute all the property of the decedent, if the whole value of the same does not exceed $ 1,500, in fee and absolutely, as follows, to wit: One-half to the surviving wife or husband and one-half in equal shares to the minor children; or, if there be no surviving wife or husband, in equal shares to the minor children; or, if there be no minor child, to the surviving wife or husband. The expenses of the last illness, funeral charges, and expenses of administration, shall be paid before such distribution is ordered. In case the whole estate of the decedent be thus distributed, there must be no further proceedings in the administration, unless other property is discovered. The court may, at its discretion, exclude from the distribution of the property so set apart and distributed, other than the homestead, any surviving wife, husband, or minor child having separate property or income, and in all other cases wherein the estate is valued at more than $ 1,500 the court may, on petition and notice, set apart and distribute property, not to exceed $ 1,500 in value, to the surviving wife, or husband, and minor children, according to the foregoing provisions. This section shall not be construed to affect the right of the decedent to dispose of his estate by will, as provided by law." (Italics ours.)

We have italicized those portions of the sections quoted which have a direct bearing upon the issues presented here and to...