La Tourette v. La Tourette

• Citation: 15 Ariz. 200,137 P. 426
• Decision Date: 02 January 1914
• Docket Number: Civil 1334
• Parties: LYMAN D. LA TOURETTE, VERNE G. LA TOURETTE and CORA LA TOURETTE, Guardian of the Estate of RENA C. LA TOURETTE, JOHN W. LA TOURETTE, CHARLOTTE E. LA TOURETTE and EMERY E. LA TOURETTE, Appellants, v. PETER LA TOURETTE, Executor of the Last Will and Testament of JOHN LA TOURETTE, Deceased, and ROSE ANN LA TOURETTE, PETER LA TOURETTE, CORNELIA ANN MUNDS, ROSE OLIVE SHERIDAN and VIOLA WELLS, Appellees
• Court: Supreme Court of Arizona

137 P. 426

15 Ariz. 200

LYMAN D. LA TOURETTE, VERNE G. LA TOURETTE and CORA LA TOURETTE, Guardian of the Estate of RENA C. LA TOURETTE, JOHN W. LA TOURETTE, CHARLOTTE E. LA TOURETTE and EMERY E. LA TOURETTE, Appellants, v. PETER LA TOURETTE, Executor of the Last Will and Testament of JOHN LA TOURETTE, Deceased, and ROSE ANN LA TOURETTE, PETER LA TOURETTE, CORNELIA ANN MUNDS, ROSE OLIVE SHERIDAN and VIOLA WELLS, Appellees

Civil No. 1334

Supreme Court of Arizona

January 2, 1914

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Phillips, Judge. Affirmed.

The facts are stated in the opinion.

Messrs Armstrong & Lewis, for Appellants.

Messrs O'Neill & McKean, for appellees.

OPINION

FRANKLIN, C. J.

John La Tourette, the deceased, left surviving him a widow and children. The will of deceased was duly admitted to probate. Omitting the formal parts, it is as follows:

"I, John La Tourette, of Phoenix, county of Maricopa, Arizona territory, of the age of seventy (70) years, and being of sound disposing mind and memory, and not acting under duress, menace, fraud, or under the influence of any person whatever, do make, publish and declare this my last will and testament in the manner following, that is to say:

"First I direct that my body be decently buried and in a Christian manner, without undue ceremonies, and that the expenses of my last sickness and funeral be first paid by my executor hereinafter named, from my estate.

"Secondly I give, devise and bequeath unto my beloved wife Rose Ann La Tourette, of Phoenix, Arizona, all of the property of which I may die possessed, of any and every nature, and wheresoever situate, whether the same be real, personal or mixed, to have, hold, use and enjoy the same, for the purpose of yielding to her a good, comfortable and certain and satisfactory living during her natural life, and I desire and direct, that after her death all of said property of which she is then possessed shall go to our surviving children, and to the issue of those who may be dead, to the extent of the share which would have gone to the deceased parent, if alive, share and share alike.

"The names of our now surviving children are: Peter La Tourette, 36 years old, of Phoenix, Arizona, James T. La Tourette, 34 years old, of Phoenix, Arizona, Cornelia Ann Munds, 31 years old, of Phoenix, Arizona, Rose Olive Sheridan, 28 years old, of Phoenix, Arizona, Viola Wells, 24 years old, of Phoenix, Arizona, and they are to be the participants in said distribution, above mentioned, or in the event that any of them is dead leaving issue the issue shall receive the share that would have gone to the dead parent, if alive; and in the event of the death of any of the above named five children, before such distribution, without issue, the share of such one shall be divided share and share alike among the surviving ones, as above arranged.

"I hereby direct, authorize and empower, my said executors to sell and dispose of any or all of the property whether personal or real, at any time, when they deem it necessary, upon the consent and approval of my beloved wife, and without the necessity of having or obtaining the consent or approval of any court, and with or without notice.

"It being my wish, desire and intention to provide, beyond doubt, and to her satisfaction, a living and money to satisfy the desires of my beloved wife during her natural life, I hereby direct and order that my said executors shall at all times first see and attend to that, and if necessary, to sell and dispose of any of the said property for the said purpose.

"Lastly: I hereby nominate and appoint my sons Peter La Tourette and James T. La Tourette the executors of this my last will and testament, without bonds of any kind and hereby revoke all former wills by me made."

By a codicil to this will, the testator mentioned one of his daughters, who was indebted to him, and directed that such indebtedness specifically named in character and amount be deducted from the share thaw would go to her or, in the event of her death, to her children.

All of the estate involved was the community property of the deceased and his surviving wife, Rose Ann La Tourette. After administration had on this community estate, and upon the final settlement of the accounts of the executor, there was a decree of distribution. In this decree the court distributed "An undivided one-half (1/2) of said residue to Rose Ann La Tourette, to have, hold, use, and enjoy the same for the purpose of yielding her a good, comfortable, certain, and satisfactory living, and money to satisfy the desires of said rose Ann La Tourette during her natural life, and after her death, all of said property of which she is then possessed shall go to Peter La Tourette, the issue of James T. La Tourette (deceased), Cornelia Ann De Mund, Rose Olive Sheridan, subject to the payment of certain notes and sums as set forth in the codicil of the last will and testament of said John La Tourette, and Viola Wells, and in the event of the death of any of the above-named children leaving issue, the issue shall receive the share that would have gone to the dead parent, if alive, and in the event of the death of any of the above-named legatees and devisees before distribution and without issue, the share of such one shall be divided share and share alike among the surviving ones as above arranged; the remaining one-half (1/2) of said residue to Rose Ann La Tourette, surviving widow of deceased, absolutely and in fee."

This appeal involves the validity of the decree. It is claimed that the decree of distribution is contrary to the terms of the will of the deceased, and erroneous because the surviving widow has never renounced or in any wise excepted to the terms of the will. The necessity for an election by the widow is pressed, because by the terms of the will it is claimed that there was an intent upon the part of the testator to give to the wife a life estate in the whole of the community property in lieu of her own proprietary right therein; that thereby the widow was put to an election either to take her share in the community property, as provided by law, or to take the right and interest therein given her by the will; that she may not take both, and having failed to make an election, she will be deemed to have accepted and taken only the interest given her by the will. It is also urged that the decree of distribution is wrong in not safeguarding the interest of the remaindermen by requiring the widow, as a trustee of such remaindermen, to give security for the proper holding and distribution of the personal property coming into her hands under the will.

We are asked to construe this will, and, as a necessary background to consider its effect, let us examine somewhat into the rights of married persons with respect to their property interests. These rights are defined in the law, and we shall quote the following provisions of the Revised Statutes of 1901, as pertinent to the question presented.

"Par. 3102. (Sec. 16.) All property, both real and personal, of the husband, owned or claimed by him before marriage and that acquired afterward, by gift, devise or descent as also the increase, rents, issues and profits of the same, shall be his separate property, and all property both real and personal of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, as also the increase, rents, issues and profits of the same, shall be her separate property."

"3104. (Sec. 18.) All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, or earned by the wife and her minor children, while she has lived or may live separate and apart from her husband, shall be deemed the common property of the husband and wife, and during the coverture personal property may be disposed of by the husband only; but the wife must join in all deeds and mortgages affecting real estate except unpatented mining claims."

"3108. (Sec. 22.) The community property of the husband and wife shall be liable for the community debts contracted by the husband during marriage, except in such cases as are specially excepted by law.

"3109. (Sec. 23.) The wife may contract debts for necessaries for herself and children upon the credit of her husband, in which case she and her husband must be sued jointly.

"3110. (Sec. 24.) Upon the trial of any suit as provided for in the preceding section the court shall decree that the execution be levied, first upon the common property, second upon the separate property of the husband, third upon the separate property of the wife."

"2124. (Sec. 9.) Upon the dissolution of the marriage relation by death, all the common property belonging to the community estate of the husband and wife shall go to the survivor if the deceased have no child or children; but if the deceased have a child or children, his survivor shall be entitled to one-half of said property and the other half shall pass to the child or children of the deceased.

"2125. (Sec. 10.) In every case the community estate passes charged with the debts against it."

By the provisions of the law married persons have two distinct and well-defined property rights. The first is the separate property of each of the spouses, and the second is the community property belonging to both. In construing the will we shall be aided materially in determining its consequence by some reflection upon the nature and character of this estate known as community property. And the observations we shall indulge will, of course, be limited in their application to the point under consideration and the facts before us, except, as in cases by...