Mathey v. Mathey

• Decision Date: 28 December 1939
• Docket Number: 7958.
• Citation: 98 P.2d 373,109 Mont. 467
• Parties: MATHEY v. MATHEY et al.
• Court: Montana Supreme Court

98 P.2d 373

109 Mont. 467

MATHEY v. MATHEY et al.

No. 7958.

Supreme Court of Montana

December 28, 1939

Rehearing Denied Feb. 5, 1940.

Appeal from Eighth District Court, Chouteau County; H. H. Ewing Judge.

Action to procure an interest in lieu of dower by Helen Mathey against Minnie Mathey, also known as Mina Mathey, and another. From a judgment dismissing the complaint, plaintiff appeals.

Reversed with directions.

Swanberg & Swanberg, of Great Falls, for appellant.

Hall & Alexander, of Great Falls, for respondents.

ARNOLD Justice.

The plaintiff, widow of Joseph C. Mathey, brought an action in the district court of Chouteau county, Montana, to procure an interest in lieu of dower in lands located in that county. Her amended complaint was filed in July, 1936. The defendants are sisters of the deceased husband. The plaintiff asked in her complaint that she be adjudged the owner in fee simple of one-half of the real estate described in the complaint, under the authority of section 5821, Revised Codes 1935, having in her complaint elected to take in lieu of dower. Her husband left no children or descendants of children. The plaintiff and her husband were residents of the state of Minnesota during coverture and at the time of his death.

After probate of the estate in Montana, a decree of distribution was entered in 1934, distributing the property according to the laws of succession, the deceased having died intestate. The widow by the decree of distribution received one-half of the residue and each of the defendants one-fourth thereof. In 1935 the plaintiff by warranty deed conveyed the property she had received by virtue of the decree of distribution to one Gottlieb Ryffel, who had been administrator of the estate and who was also a tenant in common with Joseph C. Mathey in the lands involved in this action, "together, with all and singular the hereinbefore described premises together with all tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining; and the reversion and reversions, remainder and remainders, rents, issues and profits thereof; and also all the estate, right, title interest, right of dower and right of homestead, possession claim and demand whatsoever, as well in law as in equity, of the said party of the first part, of, in or to the said premises, and every part and parcel thereof, with the appurtenances thereto belonging, to have and to hold, all and singular, the above mentioned and described premises, unto the said party of the second part, and to his heirs and assigns forever."

All of the land distributed in the probate proceedings was subject to two mortgages totaling $8,000. Notice to creditors was given in regular course in the probate proceedings, but no claim against the estate was filed by the mortgagee.

The action was tried by the court without a jury, and at the conclusion of the evidence, which was brief, the court ordered it dismissed on the ground that it was prematurely brought, inasmuch as the complaint and evidence showed that the mortgage debts of $8,000 had not yet been paid. This appeal followed.

The questions raised on this appeal, therefore, are: First, the effect of the mortgages on the lands of the deceased; second, the effect of the decree of distribution and the widow's warranty deed conveying away the share distributed to her; third, the effect of the non-residence of the widow.

We shall take up first the question of the right of plaintiff to have her rights in lieu of dower determined when the property is covered by mortgage for which no claim has been filed against the estate, the precise question being: Is the mortgage a debt or claim within the meaning of section 5821, Revised Codes 1935, which reads as follows: "If a husband die, leaving a widow, but no children, nor descendants of children, such widow may, if she elect, have, in lieu of her dower in the estate of which her husband died seized, whether the same shall have been assigned or not, absolute and in her own right, as if she were sole, one-half of all the real estate which shall remain after the payment of all just debts and claims against the deceased husband; provided, that, in case dower in such estate shall have been already assigned, she shall make such new election within two months after being notified of the payment of such claims and debts."

In the ordinary meaning of the term "debt" or "claim" a mortgage indebtedness, of course, is included therein. It is often referred to as a "secured debt." Certain rights are lost, however, by such a creditor or claimant if he fails to comply with the provisions of the statute relating to that kind of indebtedness when the debtor dies and his estate comes into the probate court. Sections 10170 to 10173, Rev.Codes 1935, require all claims to be filed within a certain time and manner, depending upon the amount of the estate, and if not so presented such claims are forever barred, the only exceptions being that if it is made to appear by the affidavit of the claimant to the satisfaction of the court that the claimant had no notice as provided in the preceding sections, by reason of being out of the state, they may be presented at any time before an order of distribution is entered, and, provided further, that mortgages upon real property of decedents may be foreclosed, except that no balance of the debt secured by such mortgage remaining unpaid after foreclosure shall be a claim against the estate, unless such debt was presented as required by the provisions of this chapter.

Therefore, when a mortgage holder fails to present his claim within the time specified in the Code, he no longer has recourse against the estate of the deceased, other than the property described in his mortgage. The debt loses its characteristic as a debt of the deceased and is not enforceable against the property of the deceased, excepting only that property covered by the mortgage. This principle is further borne out by the sections of our Code relating to distribution of estates.

Section 10318 provides that at any time after the lapse of four months of the issuing of letters testamentary or of administration, any heir, devisee or legatee may present his petition for his share of the estate upon giving bonds for the payment of his proportion of the debts of the estate.

Section 10323 provides that at any time after the lapse of one year from the issuance of letters testamentary or of administration, such heir or devisee may present his petition for distribution, and if it appears that the estate is but little indebted and that the share of the party applying may be allowed to him without loss to the creditors of the estate, the court may make an order in conformity with the prayer of the applicant, requiring that such heir before receiving his share execute a bond conditioned for...