Lemp v. Lemp

• Decision Date: 20 September 1919
• Citation: 32 Idaho 397,184 P. 222
• Parties: MARY W. LEMP, Appellant, v. HERBERT LEMP, Executor, Respondent
• Court: Idaho Supreme Court

184 P. 222

32 Idaho 397

MARY W. LEMP, Appellant, v. HERBERT LEMP, Executor, Respondent

Supreme Court of Idaho

September 20, 1919

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Proceeding for partial distribution of decedent's estate. Judgment of the district court reversing a judgment of the probate court setting aside the proceeds of certain life insurance policies on the life of the decedent to the surviving widow. Reversed and remanded.

Reversed and remanded with instructions. Costs awarded to appellant.

Richard H. Johnson, for Appellant.

The probate court was justified in setting aside for the widow the proceeds of the policies, because they are exempt from execution. (Rev. Codes, secs. 4480, 5441; Estate of Miller 121 Cal. 353, 53 P. 906; Holmes v. Marshall, 145 Cal. 777, 104 Am. St. 86, 2 Ann. Cas. 88, 79 P. 534, 69 L. R A. 67.)

The rights of the surviving widow to the exempt property are superior to the rights of legatees under the will, although it is the testator's separate property. (In re Davis, 69 Cal. 458, 10 P. 671; Sulzberger v Sulzberger, 50 Cal. 385; In re Lahiff's Estate, 86 Cal. 151, 153, 24 P. 850; Estate of Green, 1 Cof. Prob. Dec. 444; In re Bump's Estate, 152 Cal. 274, 278, 92 P. 643; In re Estate of Walkerley, 77 Cal. 642, 20 P. 150; Eproson v. Wheat, 53 Cal. 715; Estate of Huelsman, 127 Cal. 275, 59 P. 776; In re Kennedy's Estate, 157 Cal. 517, 522, 108 P. 280, 282, 29 L. R. A., N. S., 428; In re Firth's Estate, 145 Cal. 236, 78 P. 643; In re Levy's Estate, 141 Cal. 646, 652, 99 Am. St. 92, 75 P. 301; Estate of McVay, 14 Idaho 56, 93 P. 28; Coughanour v. Hoffman's Estate, 2 Idaho 290, 13 P. 231; In re Gray's Estate, 159 Cal. 159, 160, 112 P. 890. In sec. 5441, R. C., "may" means "must." (Estate of Ballentine, 45 Cal. 696; In re Still's Estate, 117 Cal. 509, 513, 49 P. 463; In re Davis, supra.)

The insurance money did not pass by the will. (In re Gray's Estate, supra; Wilson v. Linder, 18 Idaho 438, 446, 138 Am. St. 213, 110 P. 274; In re Irish's Will, 89 Vt. 56, Ann. Cas. 1917C, 1154, 94 A. 173; Canaday v. Baysinger, 170 Iowa 414, 152 N.W. 562; Blouin v. Phaneuf, 81 Me. 176, 16 A. 540; Golder v. Chandler, 87 Me. 63, 32 A. 784; Graham v. Allison, 24 Mo.App. 516; Evans v. Opperman, 76 Tex. 293, 13 S.W. 312; In re Haley's Estate, 13 Phila. 276; In re Eagle, 3 Abb. Pr. (N. Y.) 218.)

Property exempt from execution does not pass by the will of decedent, but should, under similar statutes, be set aside to the surviving spouse. (McLean v. Martin, 155 Ala. 208, 45 So. 295; Mitchell v. Allis, 157 Ala. 304, 47 So. 715; Meyer v. Meyer, 25 S.D. 596, 127 N.W. 595; In re Pillsbury's Estate, 175 Cal. 454, 166 P. 11.)

"The right of testamentary disposition, and the right of beneficiaries to take under the will, are alike statutory, and are both subject to the power of the court having jurisdiction of the estate to make a provision for the support of the widow out of the estate." (In re Whitney's Estate, 171 Cal. 750, 154 P. 855; Roundtree v. Montague, 30 Cal.App. 170, 157 P. 623; Miller v. Stepper, 32 Mich. 194, 202; Wilson v. Wilson, 55 Colo. 70, 132 P. 67; In re Finch's Estate, 173 Cal. 462, 160 P. 556.)

C. Homer Lingenfelter and A. A. Fraser, for Respondent.

The mere existence of the marriage relation is not the only requisite to the granting of a family allowance to a survivor. Statutes of this character contemplate the immediate family of the deceased, persons who were in his lifetime dependent upon him for support; and do not include a consort living separate and apart from the deceased at the time of his death because of a marriage settlement or an abandonment of the deceased by such survivor. (In re Bose's Estate, 158 Cal. 428, 111 P. 258; In re Park's Estate, 25 Utah 161, 69 P. 671; In re Yoell's Estate, 164 Cal. 540, 129 P. 999, 1005; In re Noah's Estate, 73 Cal. 583, 2 Am. St. 829, 15 P. 287; In re Meyers' Estate, 24 Pa. Super. Ct. 142; Odiorne's Appeal, 54 Pa. 175, 93 Am. Dec. 683; Nye's Appeal, 126 Pa. 341, 12 Am. St. 873, 17 A. 618; 18 Cyc. 392; In re Miller's Estate, 158 Cal. 420, 111 P. 255.)

"As the proceeds of a life policy, payable to the executor, administrator, or assigns of the insured, become a part of the insured's estate on his death, they may be disposed of by will, especially where the right of every person to devise any part of his estate is expressly recognized by statute." (4 Cooley's Briefs on Insurance, p. 3743; Fletcher v. Williams (Tex. Civ.), 66 S.W. 860.)

"The will of the testator, no matter to whom it conveys the estate, when it can be collected from the instrument is the polestar of decision." (Peppard v. Deal, 9 Pa. 140.)

"The determination of the question whether the testator can dispose of the proceeds of an insurance policy, payable on his death, depends wholly upon the terms of the contract of insurance to which he is a party. Where the insurance is payable to the insured, or to his estate, or to his executors, the proceeds may be bequeathed by him and will pass under a general or residuary bequest of his property." (1 Underhill, Law of Wills, p. 70); Aveling v. Northwestern Masonic Aid Assn., 72 Mich. 7, 40 N.W. 28, 1 L. R. A. 528; Fox v. Senter, 83 Me. 295, 22 A. 173.)

BUDGE, J. Morgan, C. J., and Rice, J., concur.

OPINION

BUDGE, J.

This is an appeal from a judgment of the district court reversing a judgment of the probate court of Ada county, setting aside the proceeds of two insurance policies on the life of Edward Lemp, deceased, to Mary W. Lemp, his widow.

Lemp died September 6, 1912, testate, holding two policies for $ 2,500 each in the New York Life Insurance Company, the annual premiums of which aggregated less than $ 250.

The probate court set aside the proceeds of these policies to the widow, on the theory that they were community property, and did not pass by the will. The district court reversed the judgment on the theory that the proceeds of the policies were separate property, and passed by the will to the legatees, Herbert and Bernard Lemp, brothers of the deceased.

In order that final disposition might be made of the subject matter in litigation, a stipulation was entered into by counsel for the respective parties, and filed in the probate court, to the effect that the petition should be considered amended so as to permit the court to make such order with reference to such proceeds as the law may require. The question, therefore, is presented whether under any provision of the law the widow, upon her application therefor, would be entitled to have set aside to her the proceeds of the insurance policies.

As we view the case, it is immaterial, and hence unnecessary for us to determine, whether the proceeds of these policies were community or separate property.

C. L., sec. 5441, provides in part as follows:

"Upon the return of the inventory, or at any subsequent time during the administration, the court or the probate judge may, on his own motion or on petition therefor, set apart for the use of the surviving husband or wife, or the minor children of the decedent, all property exempt from execution. . . . "

C. L., sec. 4480, subd. 9, exempts:

"All moneys, benefits, privileges or immunities, accruing or in any manner growing out of any life insurance on the life of the debtor, to an amount represented by an annual premium not exceeding two hundred and fifty dollars."

Under sec. 5441, supra, it was the duty of the probate court or judge, either on his own motion or on petition as in this case, to set apart for the use of the surviving wife all property exempt from execution. (Estate of Miller, 121 Cal. 353, 53 P. 906; Holmes v. Marshall, 145 Cal. 777, 104 Am. St. 86, 2 Ann. Cas. 88, 79 P. 534, 69 L. R. A. 67.)

In the latter case, the supreme court of California, said:

"In construing this statute, as in the construction of all statutes, it is the duty of the court to arrive at the intent of the Legislature, if it can be done, from the language used in the statute. Statutes exempting property from execution are enacted on the ground of public policy, for the benevolent purpose of saving debtors and their families from want by reason of misfortune or improvidence. The general rule now is to construe such statutes liberally, so as to carry out the intention of the Legislature and the humane purpose designed by the lawmakers: 12 Am. & Eng. Ency. of Law, 2d ed., pp. 75, 76, and cases cited; In re McManus, 87 Cal. 292, 294, 22 Am. St. 250, and note, 25 P. 413, 10 L.R.A. 567; Spence v. Smith, 121 Cal 536, 66 Am. St. 62, 53 P. 653, 933. . . . "

"As to the policy payable to, and collected by the estate, the estate was the beneficiary, and the money was for the reasons before stated exempt from execution. It was, therefore assets of the deceased exempt from execution, and was properly set apart to the widow as being so exempt; Code Civ. Proc., sec. 1465; Estate of Miller, 121 Cal. 353, 53 P. 906. The administrator or executor is not the owner of any part of the estate. He, in his official character, only holds it in trust for the parties entitled to it, subject to the purposes of administration. The title to the insurance money came to respondent Annie J. Jenkins, through the estate, and under the order setting it apart, and vested the title in her as effectively as if she had been named as the beneficiary of the policy. We can see no reason why the insurance money coming to her directly as beneficiary should be exempt from execution, and not that coming to her indirectly through the estate and the order setting it apart. In either case it is exempt from execution. In one case the instrument of life insurance gives the title, in the other the law...