Ullman v. Abbott

Decision Date30 January 1902
Citation10 Wyo. 97,67 P. 467
PartiesULLMAN v. ABBOTT, ADMINISTRATOR, ETC., ET AL
CourtWyoming Supreme Court

ERROR to the District Court, Laramie County, HON. RICHARD H. SCOTT Judge.

This was an application by a widow, on the probate side of the court, to have the homestead of her deceased husband set apart for her use. The application was denied, and the matter was brought to this court on error. Daniel Ullman, a citizen and resident of the City of Cheyenne, in the State of Wyoming, died in that city on the tenth day of September 1896. He left surviving him a widow, the petitioner in this case, and an adult daughter, Josephine, and no other children. The defendant, George E. Abbott, was appointed administrator of his estate with the will annexed. The other defendant in error, Ella May Thompson, was the devisee of the property in controversy. The petition of the widow was contested on the grounds, viz.: That the petitioner had many years before the death of the testator abandoned him, and separated herself from him, against his wishes and request and continued such abandonment until the death of the testator; that the petitioner had been living in open adultery with divers men from the time she left the deceased until the time of his death; that the petitioner had never lived with the testator upon the premises in question, nor at any place within the State of Wyoming. These allegations were denied by the petitioner, who also alleged that the deceased had prevented her from living with him, and had lived on the premises in open adultery with the devisee thereof. The other material facts are stated in the opinion.

Judgment affirmed.

John C Baird and Edgar W. Mann, for plaintiff in error.

Petitioner was not a plaintiff in the sense of the statute requiring non-resident plaintiffs to furnish security for costs, which provision is found only in the civil code regulating actions at law and equity. That statute has no application to the proceedings such as this was on the probate side of the court. The plaintiff in error did not commence an action. She filed a petition in a matter already pending. She was not a moving party to bring the other parties into court. The administrator was already in court, and Mrs. Thompson merely intervened, the same as the petitioner. In a proceeding like this there is no plaintiff and no defendant. No judgment is asked against any one. The relief prayed for could be granted by the court on its own motion. At common law a plaintiff is one who brings a suit--an actor. (Anderson's Law Dict.) And under the statute the party complaining is to be known as the plaintiff. (R. S., 3444.) Plaintiff in error was not a non-resident. The residence of the wife follows that of the husband, and the residence of the widow is that of the husband at the time of his death.

Where a statute covers a subject already covered by existing law, and the new statute revises the whole matter, making changes in the former law, and evidently intended as a substitute for it, the former law is repealed by implication, though the later statute contains no repealing clause. (Murdock v. Memphis, 87 U.S. 590; Henderson's Tobacco, 78 U.S. 652; U. S. v. Tynen, 78 U.S. 88; Com. v. Cooley, 10 Pick., 36; Bartlett v. King, 12 Mass. 536; Longlois v. L., 48 Ind. 60; Hayes v. State, 55 Ind. 99; Dowdell v. State, 58 Ind. 333; State v. Rogers, 10 Nev. 319; U. S. v. Barr, 4 Saw., 256.) The statute providing that the homestead is allowed to a widow residing in this State is, so far as the necessity of residence is concerned, repealed by implication by the statute of 1890-91. (See also Seymour v. Milford, &c., 10 O., 482; Re. Hickory Tree Road, 43 Pa. St., 139; Endlich on Int. of Stat., 187.) It is evident that the Legislature intended to specifically repeal all the old sections that were superseded by the new probate code. The petitioner was the lawful wife of the deceased, regardless of her place of residence.

It is the duty of the judge to set aside the homestead for the widow. He is not vested with any discretion. (Est. of Ballentine, 45 Cal. 696; Ter. v. Nelson, 2 Wyo., 346; 14 Ency. L., 979; Sulzberger v. Sulzberger, 50 Cal. 385; In Re. Davis, 69 Cal. 458; Tyrell v. Baldwin, 78 Cal. 470; Denmarlin v. Denmarlin, 85 Cal. 71; Est. of Davis, 10 P. 671; In Re. Adams, 57 P. 569.) A widow's right to the homestead is absolute. Such a rule promotes justice and defeats an outrage such as is attempted in this case.

The status of the widow determines her right. (Rogers v. Day (Mich.), 74 N. W., 190.) The fact that she lives apart from her husband at the time of his death is of no consequence; and even though she deserts her husband and lives in adultery, that will not forfeit her right. (Duffey v. Harris (Ark.), 45 S. W., 545; Atkinson v. Atkinson, 40 N. H., 249; Wood v. Lord, 51 N. H., 454; Meader v. Place, 43 N. H., 308; see also Towne v. Rumsey, 35 P. 102.) If it be true that a married man, whose wife has deserted him, is entitled to a homestead exemption, being the head of a family de jure, it must follow that the wife's rights in the homestead remain after the death of her husband, and that she may claim its benefits. If she is wife for the period of his life for homestead purposes, she is his widow after death of the husband for the same purposes. (Waples on Hd. Ex., p. 66, 580-581; Thompson on Hd. Ex., Sec. 73, 278; Gates v. Steele, 48 Ark. 539; Pardo v. Bitlorf, 48 Mich. 275; Lindsay v. Brewer, 60 Vt. 627; Lies v. Diablar, 12 Cal. 328; Doyle v. Coburn, 6 Allen, 71; Earll v. Earll, 60 Mich. 30; Griffin v. Nichols, 51 Mich. 575.)

When a wife is driven from her home by the misconduct of her husband, she carries with her all her marital rights, including the right of homestead. (Sherid v. Southwick, 43 Mich. 515; Lamb v. Wogan, 27 Neb. 236; Atkinson v. Atkinson, 37 N. H., 434; Wood v. Lord, 51 N. H., 448; Barker v. Dayton, 28 Wis. 367; Keyes v. Scanlon, 63 Wis. 345; Welch v. Rice, 31 Tex. 688; Earl v. Earl, 9 Tex., 630; Newland v. Holland, 45 Tex. 588; Reynolds v. Reynolds, 24 Wend. , 193.) In some states the wife is entitled to benefit of homestead law, although she never resided in the State. (20 La. Ann., 383; 96 Am. Dec., 411; Cole's Widow v. Ex'rs., 7 Mart., 41; Dixon v. Dixon, 4 La., 188; Johnston v. Turner, 29 Ark. 280; Green v. Crow, 17 Tex. 180; Lacey v. Clements, 36 Tex. 661; Henderson v. Ford, 46 id., 627; Williams v. Swetland, 10 Ia. 51; Barker v. Dayton, 28 Wis. 367; Keyes v. Scanlon, 63 id., 345; Brown v. Adm'rs., 68 Mo. 388; Whitehead v. Tapp, 69 id., 415.) Even desertion by the wife does not forfeit her right, unless in those states where the right is limited to a widow who resides on the homestead property with her husband at the time of his death. (8 C. L. J., 46; Brown v. Brown, 68 Mo. 388; Eproson v. Wheat, 53 Cal. 715; Partho v. Bittdorf, 48 Mich. 275; 82, id., 202; 86, id., 283; Rosholt v. Mehus, 57 N.W. (N. D.), 783; Barney v. Leeds, 51 N. H., 253; Silloway v. Brown, 12 Allen, 30; Waples on Hd. & Exm., 66.)

Homestead laws are not in derogation of the common law and must be liberally construed. (Campbell v. Adair, 45 Miss. 182; 67 Mo. 308; 36 Vt. 271; 46 N. H., 43; Thomp. Hd. & Exm., 4; Lindley v. Davis, 7 Mont. 206; 15 Ency. L., 533; id., 555-556.)

Therefore, the widow herein is entitled to the homestead because she is the lawful widow. Having lived separate from her husband on account of compulsion, decedent could not during his lifetime, by his wrongful act, unjustly deprive her of her rights by forcing her to live apart from him.

John W. Lacey, for Abbott, the Administrator.

The motion to strike out parts of the answer was not brought into the record by bill of exceptions, nor was any exception taken to the ruling upon the motion brought into the record by bill. Such motions and the rulings upon them are not parts of the record unless brought into it by bills of exceptions. (Perkins v. McDowell, 3 Wyo., 328; France v. Bank, 3 Wyo., 187; Johnston v. Little Horse Creek, 4 Wyo., 164; Rubel v. Wiley, 5 Wyo., 427; Van Horn v. State, 5 Wyo., 501; Smith Drug Co. v. Casper Drug Co., 5 Wyo., 510; School District v. Western Tube Co., 5 Wyo., 185; Hicks v. Person, 19 O. St., 426-446; Sleep v. Williams, 21 O. St., 82; Garner v. White, 23 O. St., 192; State v. Sweeney, 68 Mo. 96; Cleland v. Waldrich, 78 Cal. 358; Boulter v. State, 6 Wyo., 66; Syndicate Imp. Co. v. Bradley, 6 Wyo. 171.)

As to the order requiring security for costs, there is nothing in the bill of exceptions showing that any such motion was made, or that the court ever ruled upon it, or that any exceptions were reserved, or any action taken by the plaintiff in error in relation to the ruling. If the ruling had been properly reserved in the bill of exceptions the only way that any error could be predicated upon it here would be to assign such ruling as ground for a new trial, and then assign the overruling of the motion for a new trial as error here. But in order that the plaintiff in error could sustain a motion for a new trial, not only must her substantial rights have been materially affected, but the order here complained of must have "prevented petitioner from having a fair trial." If she was required to give security, and complied with the order, there was nothing in this which in any way affected the fairness of the trial. Again, the petitioner, from her own showing, as well as from the affidavit requiring her to give security for costs, was an actual non-resident. Even though it be held that she was constructively a resident during the lifetime of her husband, by his death she became feme sole and had full power over her residence. Sec. 4550, Rev. Stat., 1899, makes the civil code as to security for costs applicable here.

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