In Re Metcalf's Estate , 93 Mont. 542 ( 1933 )

I do not agree with the majority that the benefits of section 10145 can be availed of only by residents. It is not an exemption statute any more than is section 10146. Both were intended to make provision for the support of the family of the decedent. This is made plain by the title of the chapter in which the sections are found, which is entitled "Provisions for the support of the family." The same is apparent also from the wording of the sections.

It is true that the exemptions provided for by section 9428 are available only to bona fide residents of the state. The insured, father of claimant here, was a bona fide resident of this state at the time of his death. He is the one to whom the exemption is given, and it is his residence, and not that of his minor child, that controls. (Feld v. Borodofski, 87 Miss. 727,40 So. 816.)

All of the cases cited in the majority opinion are distinguishable. Thus the cases of In re James' Estate, 38 S.D. 107,160 N.W. 525, Shannon v. White, 109 Mass. 146, Smith v. Howard, 86 Me. 203, 29 A. 1008, 41 Am. St. Rep. 537,Alston v. Ulman, 39 Tex. 157, and Hascall v. Hafford,107 Tenn. 355, 65 S.W. 423, 89 Am. St. Rep. 952, cited in the majority opinion, were all cases in which the decedent was a nonresident of the state. It was properly held in those cases that there was no exemption in such a case.

The case of Ex parte Pearson, 76 Ala. 521, was one in which the exemption or allowance under the statute was for the benefit of "members of the family" of decedent. The allowance was there claimed by the widow. The court held that when the wife and children were residents of another state and had never been in Alabama where the decedent resided at the time of his death, they could not be considered members of his family within the meaning of the Alabama statute. This was likewise the basis of the holding in Platt's Appeal, 80 Pa. 501, Spier's Appeal, 26 Pa. 233, Estate of Miller, 158 Cal. 420, 111 P. 255, and Estateof Bose, 158 Cal. 428, 111 P. 258, in all of which it was the widow who was asserting the right to the allowance.

The case of White v. Bickford, 146 Tenn. 608, 244 S.W. 49, 26 A.L.R. 129, is much like this case. The court there held, without citing any authority in support of its holding, that the year's support which the statute affords to the widow or children was not available to a nonresident widow or child, though decedent was a resident of the state, but did hold that proceeds of insurance policies were available to them.

The only other case relied upon in the majority opinion is that of Krumenacker v. Andis, 38 N.D. 500, 165 N.W. 524, 527. That case involved statutes very similar to section 10145, and supports the view of the majority as to the rights of a nonresident wife. In that case the wife lived in Austria-Hungary, and the decedent was a resident of North Dakota. He had obtained a divorce from his wife and married another woman, but the court held the decree of divorce invalid. The opinion on the point we are considering here was by a divided court. But the majority opinion turns more on the point that the widow ceased to be a member of the family of deceased, rather than upon residence. The majority opinion states: "The plain intent of the exemption laws is for the protection of the home and the family, of residents within the state, and the surviving widow and minor children thereof. There is no home or family within the meaning of the exemption laws, if the father or head of the family lives permanently in North Dakota, and the wife or mother lives permanently in Austria-Hungary, or other foreign nation, or in another of our states, with no intention, or circumstances indicating an intention, to ever become a resident of our state, or become a member of the home of one who is a resident of our state. The law contemplates a family living together and existing as a family." The opinion then proceeds with a discussion wherein the court admits that, in a proper case, the allowance to the widow may be made though she be a nonresident. There is nothing in that opinion to indicate that even the majority would have denied the allowance to a minor child even though a nonresident. The court held the statute to be one of exemption and not of inheritance, but I think the minority opinions, taking the opposite view, were correct.

Without prolonging this opinion, it is sufficient to say that some courts allow the widow's or child's allowance, out of the estate of a resident, to nonresident claimants. They are cited in the notes in 26 A.L.R. 132. In addition to the cases there cited, the following are to the same effect: In re Parkinson's Estate,193 Cal. 354, 224 P. 453; Caldwell v. Caldwell,192 Iowa, 1157, 186 N.W. 58; Yost v. Johnson, 114 Wash. 61,194 P. 834; In re Van Duyn's Estate, 129 Wash. 528, 225 P. 446.

Had the legislature intended to limit the benefits of section 10145 to residents of the state, it could easily have done so, as was done in Colorado. (See In re Bubser's Estate, 71 Colo. 95,204 P. 333.) Here the minor child, though living elsewhere, was still a member of the family of her father. (In re Van Duyn'sEstate, supra.) He was under obligation to maintain and support her, regardless of her residence. She was living separate and apart from him through no fault of her own, and doubtless against the desires of her father.

The allowance under section 10145 is a charge against the estate in the interest of public policy. (In re Dougherty'sEstate, 34 Mont. 336, 86 P. 38; In re Blackburn's Estate,51 Mont. 234, 152 P. 31.) It is to give assurance to residents of this state that after their death their loved ones will be provided for to the extent at least of the exempt property. To give full benefit of section 9428 to the father, resident of this state, the exemption should be set aside for his minor daughter wherever living.

In my opinion, the nonresidence of the minor child is no barrier to her right to receive the allowance provided for by section 10145. No useful purpose would be subserved in discussing what she should receive by way of an allowance under section 10145, under the facts here, in view of the majority opinion.

Rehearing denied March 24, 1933.