Ullman v. Abbott

Corn, Justice. One Daniel Ullman died September 10, 1896, leaving, amongst other property, a house and lot in Cheyenne, which he occupied as his residence for some years prior to and at the time of his death. By his will he devised this property to the defendant in error, Ella May Thompson. The defendant in error, George E. Abbott, was appointed administrator with the will annexed, and, in the course of administration, on February 9, 1897, the plaintiff in error, Harriet Ullman, filed her petition asking that the above mentioned homestead be set apart for her use and benefit, as the widow of the de — 107 — ceased. Upon a hearing the District Court found against the petitioner and ordered that her petition be dismissed, and that she pay the costs of the proceeding. There was a motion for a new trial and a bill of exceptions, and plaintiff in error comes to this court. Numerous errors are assigned, but they are all comprehended under a few propositions. (1) The District Court, upon motion of defendant in error, Thompson, ordered that the petitioner give a bond for costs. This order is assigned as error. She gave the bond and the trial was proceeded with. The order, therefore, if erroneous, did not affect materially her substantial rights and did not prevent her from having a fair trial. But we think the order was not erroneous. Section 3781, Rev. Stat., 1899; provides that the plaintiff, if a non-resident of the county in which the action was brought, must furnish sufficient security for costs. But it is insisted that the “action” referred to in this section is the “civil action” provided for by the code of civil procedure, and that this proceeding is not such an action and is not covered by the statute; that the petitioner was not a “plaintiff” within the meaning of the law, and that she was not a “non-resident,” being the widow of a man who at the time of his death was a resident of the county in which the proceeding was pending. The section of the statute referred to appears in the code of civil procedure, was enacted long prior to the adoption of our present probate code, under whose provisions this proceeding was had, and without doubt was primarily applicable to suits brought under the code of civil procedure. But the probate code (Sec. 4550, R. S., 1899) provides that “except as otherwise provided in this division, the provisions of the code of civil procedure are applicable to and constitute the rules of practice in the proceedings mentioned in this division.” That the officers of the court and litigants should be protected in their costs as against opposing litigants who reside beyond the jurisdiction of the court, which is the object of the provision, is quite as desirable and necessary in proceedings under the probate code as in actions under the civil code, and — 108 — there can be no doubt of the applicability of the section to probate proceedings. For the same reason the fact that the section employs the word plaintiff instead of petitioner is not significant. As originally enacted, it was applicable only to the “action” of the civil code and used the word which correctly described the moving party in the suit. But it would be a nicety of distinction entirely unwarranted to refuse to apply it to probate proceedings, as required by Section 4550, because the moving party, though clearly indicated by the language used, is not named with precise and technical accuracy. In regard to the proposition that the petitioner was not a non-resident, it is sufficient to say that there was filed with the motion an affidavit of her non-residence which was not traversed by her, and she does not allege by her petition or otherwise that she was a resident of this State, except by way of inference from the fact that she was the widow of a man residing here at the time of his death. And the proof is clear that, whatever ma)' have been her domicile in a technical sense during his life, she had actually resided out of this State for many years, so that at the time her petition was filed, five months after his death, she had no residence here in any possible view of the facts. (2) In answer to the petition of plaintiff in error, it was alleged by the defendants in error, that the former had abandoned the deceased many years before his death, and had never at any time resided with him upon the premises in question or elsewhere in the State of Wyoming, but had resided in the City of Denver in property owned by herself; that she had been the keeper of houses of prostitution there and lived in adultery with other men. She replied, denying these allegations, and alleged that she had lived apart from the deceased because he had refused to allow her to live with him at his home 1 in Cheyenne and had refused to live with her in Denver, and| that she was further prevented from living with him at his home in Cheyenne by the fact that he was living there in adultery with the defendant in error, Ella May Thompson. Her own deposition was offered in support of — 109 — these allegations, but the testimony was excluded upon the ground that she was not a competent witness under the statute. This is assigned as error. Section 3683, Rev. Stat., provides that a party shall not testify where the adverse party is an executor or administrator, or claims or defends as devisee or legatee of a deceased person. But it is contended by counsel for plaintiff in error that this proceeding was simply a motion; that it was not even necessary that any petition should be filed, it being the duty of the court under the statute to set apart the homestead to the widow either on a petition therefor or on its own motion; that, therefore, she was not a party, that the administrator and devisee were not adverse parties within the meaning of the law, and that the prohibition of the statute did not apply. The purpose of the statute is entirely plain. By the common law parties in interest are disqualified from testifying. By the more liberal rule of our statutes parties in interest are permitted to testify, except in certain cases where it would put the litigants upon unequal ground and give an unfair advantage to the party testifying, as where the testimony of the original party to the transaction is lost by his death. And certainly the reason of the exception applies with equal force, no matter what the form of the proceeding may be by which it is sought to charge the estate of a deceased person. Moreover, the definition of the word “party” insisted upon by the plaintiff in error is too narrow, as a brief examination of our statute will demonstrate. For instance, Section 3665 provides that the issues in any action or “proceeding” may be referred by consent of the “parties.” Section 3666 provides that the court may direct a reference without the consent of the parties in any “case” where the parties are not entitled to a trial by jury. Section 3713 provides that the officer before whom depositions are taken must not be a relative or attorney of either “party,” or otherwise interested in the event of the action or “proceeding.” Section 3715 provides for notice to the “adverse party,” specifying the “action or proceeding” — 110 — and the name of the court or “tribunal” in which the deposition is to be used. In 3716 the word party is used in the same way and in 3718 occurs the phrase “a party to the action or proceeding.” These sections, taken almost at random from the civil code, show that the use of the word is not limited, as insisted by plaintiff in error. We think the petitioner was clearly incompetent to testify to facts occurring prior to the death of the testator, and the testimony was properly excluded. (3) The petitioner was married to the testator in 1854 in Pennsylvania. From 1859 or i860 to 1867 or 1868 they lived together in Denver, when the testator removed to Cheyenne, where he acquired considerable property, and where he resided, with the exception of one or two years spent in Texas, up to the time of his death in 1896. The evidence tends to show that up to 1871 he repeatedly urged the petitioner to come to Cheyenne and live with him, but that she at all times refused and never at any time resided with him in this State; but that up to the time of his death she generally resided in Denver as the keeper of a disreputable house in property owned by herself. Under these circumstances the court below held that she was not entitled to the homestead and dismissed her petition. The correctness of this decision is the principal question in this case. The authorities are not entirely harmonious. In Missouri and Arkansas it is held that, though the wife has voluntarily abandoned her husband and is living apart from him at the time of his death, yet she is his widow within the meaning of the law and entitled to the homestead. (Brown v. Brown’s Adm., 68 Mo., 388; Duffy v. Harris, 65 Ark., 253; 45 S. W., 545.) The New Hampshire decisions are cited as sustaining the same view, but it. seems to be doubtful whether that court has passed upon the precise question. In Michigan, upon the other hand, it is held that when a wife abandons her husband and her home without legal cause — that is, not under circumstances that would entitle her to a divorce-^-she does not carry with her her marital — 111 — rights in the homestead. (Farwell Brick Co. v. McKenna, 86 Mich., 283.) And so in Texas, Tennessee and Nebraska. (Newland v. Holland, 43 Tex., 588; Sears v. Sears, id., 557; Trawick v. Harris, 8 Tex., 312; Dickman v. Birkhauser, 16 Neb., 686 (21 N. W., 396); Prater v. Prater, 87 Tenn., 78 (9 S. W., 361.) Counsel for plaintiff in error suggest that the sections of our statutes bearing upon the question were taken from the laws of California; that the Supreme Court of that State have held that a widow under such circumstances is entitled to the homestead, and that we are bound by their decisions. It is true that some of the sections of our statutes bearing upon the question of homestead are taken from California, but we do not think the California decision's support the position of plaintiff in error. In Wickersham v. Comerford, 96 Cal., 433, the husband and wife had separated by mutual agreement and were living apart at the time of his death. The court denied the right of the widow to have a homestead set apart to her. And while the fact that there had been a division of property between them at the time of the separation seems to have been influential in the determination of the court, yet they also say that in consequence of the agreement of separation, and the fact of separation in accordance therewith, she was not a member of her husband’s family at any time after the separation, and that she was not entitled to such homestead unless she had been a member of his family immediately before and at the time of his death. That decision involved a construction of Section 1465 of the California code, which is Section 4737 of ours, and is the section upon which plaintiff in error seems chiefly to rely. The Califórnia court in construing Section 1466, with reference to the allowance to be made to the widow, also express the ■opinion that, while the letter of the statute may cover other ■cases, the Legislature had in contemplation the ordinary case where the parties to the marriage relation live together until death severs the tie. (Estate of Noah, 73 Cal., 583 (2 Am. St. R., 829.) — 112 — But, independent of authority, the whole tenor of our statutes upon the subject demonstrates that, to be entitled to the benefit of their provisions, the widow must, at the time of her husband’s death, have been a member of his family and a resident of this State. In its origin, the homestead right is a mere exemption from execution. Under the head of “Exemption from Execution,” subdivision 4 of Chapter 1, Division 5, Statutes of 1887, it is provided that every householder in the Territory of Wyoming, being the head of a family, shall be entitled to a homestead exempt from execution and attachment. (Section 2780.) By the next section it is provided that such homestead shall only be exempt while occupied as such by the owner thereof, or the person entitled thereto, or his or her family. The next section provides that when any person dies seized of a homestead, leaving a widow or husband, or minor children, such widow or husband or minor children shall be entitled to the homestead. Section 2788 in the same subdivision provides that certain personal property shall be exempt “when owned by any person, being the head of a family and residing with the same,” and shall continue exempt while the family are removing from one place to another in this Territory. And it is expressly provided, in the same section, that “no property of any person about to remove or abscond from this Territory shall be exempt under the provisions of this subdivision.” Section 2789 preserves the benefits to the family in case the head of the family shall die, or desert or cease to reside with the same. Section 2790, after exempting from execution certain articles of personal property, provides that none of the articles mentioned in this and the preceding sections of the subdivision shall be exempt unless the person claiming such exemption shall be a bona fide resident of this Territory. Section 2231 of the same revision of the statutes provides that “if any decedent leaves a widow residing in this Territory” she shall be allowed to retain certain specified articles of personal property, and also all property, real and personal, which is by law exempt from execution. The conclusion is irresistible that — 113 — the Legislature intended that, these exemptions, including the homestead, should be for the benefit of the family, and that they should be confined to persons residing in this State. But it is contended by counsel for plaintiff in error that Section 2231, above referred to, was repealed by the act adopting the California probate code at the Legislative session of 1890-91. That act contains no general repealing clause, but specifies that Sections 1969 to 2220, 2240 to 2273 and 2287 to 2331 are repealed. This enumeration excludes Section 2231, apparently by intention, and it is brought into the revision of 1899 as a part of Section 4736, while the section with which it is alleged to be inconsistent is 4737, the next succeeding section. The former provides that the exempt property, including the homestead, shall be retained by the widow and set apart to her by the executor or administrator. Section 4737 is as follows: “Sec. 4737. Upon the return of the inventory, or at any subsequent time during the administration, the court may, on its own motion, or on petition therefor, set apart for the use of the surviving husband or wife, or, in case of his or her death, to the minor children of the decedent, all the property exempt from execution, including the homestead, selected and designated; Provided, Such homestead was selected from the common property, or from the separate property, of the persons selecting or joining in the selection of the same. If none has been selected and designated, or in case the homestead was selected by the survivor out of the separate property of the decedent, the decedent not having joined therein, the court must select, designate and set apart, and cause to be recorded a homestead for the use of the surviving husband or wife and the minor children; or if there be no surviving husband or wife, then for the use of the minor children, out of the common property, or if there be no common property, then out of the real estate belonging to the decedent.” The alleged repugnancy is that the earlier enactment requires that the executor or administrator shall set apart — 114 — the homestead, while by the latter it'is to be done by the court. Conceding that the two sections are inconsistent in this particular, the result would be a repeal only to the extent of the repugnancy. (Sutherland Stat. Con., Sec. 138.) That part of Section 4736 which seems to limit the right of homestead to a widow residing in this State is not in conflict with any of the provisions of the probate code. Indeed, by Section 4733, which is Section 1464 of the California code, it is provided that the widow and minor children are entitled to “remain” in possession of the homestead. This language indicates that in contemplation of the Legislature the wife, at the time of the death of the husband, must have been a member of his family and an occupant of the homestead. . And, indeed, the provision extending the right of homestead only to a widow residing in this State merely emphasizes a principle which runs through the statutes of this and most of the other states. It is not questioned that the widow in some cases may be entitled to the homestead, although she was absent at the time of her husband’s death, and although she may never have been upon the premises claimed or within the borders of the State, but it is not where she has voluntarily ceased to be a member of her husband’s family and, merely by her own preference, made her home elsewhere. It is urged, however, that the domicile of the wife is that of the husband, and that, therefore, the widow in this case must be held to have been a resident of this State and an occupant of the homestead at the time of the husband’s death. It is true that the mere temporary absence, no matter how long continued, of any member of the family will not effect a change of domicile. But the petitioner was never a member of the family or household of the deceased, in this State, and this was, as a matter of fact, never her home or residence. Upon the contrary, she persistently and in terms refused to reside here or make this her home. For many purposes, as to bring an action for divorce and the like, the law recognizes that the wife may acquire a domicile — 115 — distinct from that of the husband. (Dickman v. Birkhauser, 16 Neb., 686.) And there can be no question that our statutes of exemption recognize the possibility of a separate residence of the husband and wife. In this case it is a question of fact, and the evidence shows that the petitioner had never resided upon the premises in question or been a member of the family of the deceased in this State. There is some claim that the deceased maintained improper relations in his house with the defendant in error, Mrs. Thompson, and that petitioner was thereby prevented from living here with him as his wife. But this charge is not sustained by any competent evidence, and if such improper relations existed, it was after she had refused to take up her residence here and acquired a home and domicile elsewhere. The judgment will be affirmed. Potter, C. J., and Knight, J., concur.