In Re White's Estate

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] This appeal is from a decree in the district court settling the property rights and distributing the assets of an estate. The facts, as found by the court, are substantially as follows:

Morris Downey White died intestate on the 13th day of February, 1920, leaving as heirs and next of kin Mildred Byron White, his wife, and William C. White, a son by a former marriage. Thereafter Mildred Byron White married Douglass K. Fitzhugh, to which union there was born Collene Mildred Fitzhugh and Bonnie Lee Fitzhugh, both minors. Mildred Byron Fitzhugh died intestate on the 2d day of November, 1934, leaving as her heirs at law her husband, Douglas K. Fitzhugh, and the two minor children just mentioned. The only property left by the decedent, Morris Downey White, was cash derived from the unpaid balance of installments of a life insurance policy on his life, amounting to $3,104.67; presumably payable to his estate.

The court held as a conclusion of law that William C. White was entitled to three-fourths of the insurance money and the Fitzhughs one-fourth; that the heirs of Mrs. Fitzhugh were not entitled to a widow's allowance of $500 which they claim Mrs. Fitzhugh was entitled to receive from the estate and to which they had succeeded as her heirs.

If the insurance money was community property then five-eighths thereof was the property of Mrs. Fitzhugh and three-eighths that of William C. White (N.M.Comp.St. 1929, § 38-105); but, if it was the separate property of the husband, then Mrs. Fitzhugh was entitled to one-fourth thereof and William C. White to the remainder (section 38-106, N.M.Comp.St. 1929). The court failed to find whether the property was community, or the separate property of the husband, and it may have been either. It has been generally held in community property states that a life insurance policy payable to the estate of a person is his separate property if the policy was obtained before his marriage, McKay on Community Property (2d Ed.) § 479, and community property if the policy was obtained subsequent to marriage, McKay on Community Property (2d Ed.) § 480.

The court, in Succession of Le Blanc, 142 La. 27, 76 So. 223,225, L.R.A. 1917F, 1137, said on the subject: "Life insurance in favor of the estate, the executors or administrators, of the person insured, forms a part of his estate at his death; and the status of the proceeds or avails of such life insurance — that is, whether it is community property or property of the separate estate of the insured — depends upon whether the contract of insurance was made during the marital community or when the insured was single. The status of the proceeds or avails of such insurance, whether community property or the separate property of the insured, is not governed by the marital status of the insured at the time of his death. See Succession of Buddig, 108 La. 406,32 So. 361; Succession of Verneuille, 120 La. 605, 45 So. 520; Succession of Roder, 121 La. 692, 46 So. 697, 15 Ann.Cas. 526."

There is no finding of fact on this question. This court has decided in many cases that property acquired during marriage is presumed to be community property in absence of proof on the question, Barnett v. Wedgewood, 28 N.M. 312, 211 P. 601; Carron v. Abounador, 28 N.M. 491, 214 P. 772; Roberts v. Roberts,35 N.M. 593, 4 P.2d 920; and, in the absence of any evidence of whether property belongs to the separate or community estate, it is presumed to be community property, but this presumption may be overcome by proof that it is separate property. Strong, Trustee, v. Eakin et al., 11 N.M. 107, 66 P. 539. We then can add to the findings of the court the presumption that the property in question was the community property of Morris Downey White and his wife. It follows that she was entitled to five-eighths thereof at the death of White.

The next question is whether the wife was entitled to $500 allowance, under section 38-107, N.M.Comp.St. 1929, which is as follows: "When the decedent leaves a widow, all personal property which in his hands as head of a family would be exempt from execution, after being inventoried and appraised, shall be set apart to her as her property in her own right, and shall be exempt in her hands as in the hands of the decedent." Amended chapter 90, N.M. Laws, 1937.

Section 48-117, N.M.St. 1929, is as follows: "Any resident of this state who is the head of a family, and not the owner of a homestead, may hold exempt from levy and sale, real or personal property to be selected by such person, his agent or attorney, at any time before sale, not exceeding five hundred dollars in value, in addition to the amount of chattel property otherwise by law exempted."

The claim is that as the decedent was entitled to claim $500 exemption under section 48-117 N.M.Comp.St. 1929, above set out, that his wife was entitled to this amount of money by virtue of that statute and section 38-107, which we have quoted. In construing said section 38-107, we stated in White v. Mayo,35 N.M. 430, 299 P. 1068, that this statute vested in the widow an unqualified right to that property immediately upon the husband's death. This being true, then the only question is whether the proceeds of the insurance policy comes within these two statutes; for, according to the findings of the district court, the decedent had no property except the life insurance policy, and this was in effect a finding that he did not have a homestead. As he had a wife and child, he was the head of a family.

It was intended by section 38-107, N.M. Comp.St. 1929, supra, that after the personal property of an estate has been inventoried and appraised, any thereof which would have been exempt from execution sale, etc., in the hands of the deceased, if he was alive, should be set apart to the widow as her property. The insurance policy was the only property owned by the estate. It in time would be paid in cash. The widow was entitled to have paid to her out of the proceeds of the policy the sum of $500. It was personal property of a value exceeding that sum.

As it is necessary to reverse the case, we have concluded that, in the interest of its correct determination, the question of whether the insurance policy was community or separate property should be determined by the district court.

The cause will be reversed and remanded to the district court, with instructions to allow the heirs of Mrs. Fitzhugh the sum of $500 out of the proceeds of the insurance policy; determine from the evidence introduced, or further evidence if necessary, whether such policy was the separate property of White or the community property of him and his wife; and apportion the balance of the proceeds of the policy (after deducting the $500) among the heirs at law of the decedent in accordance with the statutes of descent and distribution of estates of decedents.

It is so ordered.

HUDSPETH, C.J., and SADLER, BICKLEY, and ZINN, JJ., concur.

On Motion for Rehearing