Joyce v. Russell

Mabshall, J. The facts found .warrant the conclusion that the premises in question never became the homestead of Catherine Eerguson. The findings are sufficiently supported by competent evidence to preclude their being condemned, in any respect, as erroneous. Therefore, the judgment must be [585] affirmed, unless the subject yet to be referred to is of controlling significance. The point is made that the court erred in not deciding that the property was exempt from creditor claims against the estate of Catherine Eerguson, by reason of the same having been purchased with pension money which, under sec. 4747, R. S. of U. S. (U. S. Comp. Stats. 1901, p. 3279), was exempt, to the extent indicated in the language of the statute, as follows: “Ho sum of money due, or to become due, to any pensioner shall be liable to attachment, levy or seizure by or under any legal or equitable process whatever, whether the same remain with the pension office, or any officer or agent thereof, or is in course of transmission to the pensioner entitled thereto, but shall inure wholly to the benefit of such pensioner.” These proceedings were instituted, solely, to settle the controversy as to whether the property was subject to the law respecting descent of homesteads. That appears to be the sole subject of the decision in the circuit court. Eor that reason the question of whether the federal statute on the subject of the exemption of pension money could, in any event, cut any figure in the case, might properly be passed without decision. However, since such question will probably have to be decided in the course of the settlement of Mrs. Eergu-son’s estate, and has been argued on both sides, it is thought best to decide the same. Counsel for appellant relies on Folschow v. Werner, 51 Wis. 85, 7 N. W. 911, where it was held, under the federal statute, that pension money after having been received by the pensioner, so long as the same can be identified as a fund in his hands for his use, is within the zone of exemption. The case did not go so far as to hold that the exemption would continue as to property purchased with the pension money, as in this case. Whether the decision could be justified on reason or authority limited, even, as it is, by the facts of the [586] case, is involved in very serious doubt as the following will show: The supreme court of Iowa is the only court, so far as we can discover, which is in harmony with Folschow v. Werner, supra. It held to the contrary at first. Webb v. Holt, 57 Iowa, 712, 11 N. W. 658; Triplett v. Graham, 58 Iowa, 135, 12 N. W. 143; Baugh v. Barrett, 69 Iowa, 495, 29 N. W. 425; Farmer & Sons v. Turner, 64 Iowa, 690, 21 N. W. 140 Foster v. Byrne, 76 Iowa, 295, 35 N. W. 513, 41 N. W. 22. The court was divided on the subject during all the time covered by the decisions referred to. After the last of such decisions the personnel of the bench was changed, the two dissenting judges remaining and two of the majority being succeeded by new men. In the changed situation the question so many times decided, as indicated, was raised anew (Crow v. Brown, 81 Iowa, 344, 46 N. W. 993), and the previous cases were all overruled, the court holding that pension money received from the United States in the hands of' the pensioner and property owned by him purchased therewith, as well, were exempt from the claims o'f creditors under the federal statute. The dissenting justices in their first dissenting opinion (57 Iowa, 712, 11 N. W. 658), relied for authority on Eckert v. McKee, 9 Bush, 355; Hayward v. Clark, 50 Vt. 612; and Folschow v. Werner, 51 Wis. 85, 7 N. W. 911. In their last dissenting opinion (76 Iowa, 295, 35 N. W. 513, 41 N. W. 22), which was referred to as expressing the judgment of the majority in Crow v. Brown, the sole authority cited was Folschow v. Werner. The Iowa court firmly adhered to its change of position (Dean v. Clark, 81 Iowa, 753, 46 N. W. 995; Smith & Co. v. Hill, 83 Iowa, 684 49 N. W. 1043; Marquardt & Sons v. Mason, 87 Iowa, 136, 54 N. W. 72; Coole v. Allee, 119 Iowa, 226, 93 N. W. 93), confessing, however, that it was against the great weight of authority (Smyth v. Hall, 126 Iowa, 627, 102 N. W. 520). The court was relieved from a somewhat embarrassing sitúa [587] tion by a legislativo enactment, following the judicial construction of the federal statute which had been adopted, thus, effectually supplementing such statute. It is interesting to note that the decision of this court, for authority, referred to Eckert v. McKee, relied on by the Iowa court. That case was overruled in 1875, sin years before Folschow v. Werner was decided. See reference to Wayne v. Chester in Robion v. Walker, 82 Ky. 60. The opinion in. Wayne v. Chester does not appear to have been published. The first published opinion of the Kentucky court, overruling Eckert v. McKee, is in Robion v. Walker, in which Webb v. Holt, 57 Iowa, 712, 11 N. W. 658, subsequently overruled in that state, as we have seen, was followed. The Kentucky court has adhered to its position, taken in 1875 as indicated,, in many decisions reaching down to date. Johnson v. Elkins, 90 Ky. 163, 13 S. W. 448; Curtis v. Hellon, 109 Ky. 493, 59 S. W. 745; Sanders v. Herndon, 122 Ky. 760, 93 S. W. 14. The Vermont case relied upon, with the early Kentucky case, overruled as wo have seen, and the case in this court based on such overruled decision, was decided in 1878, and long before the federal court had construed the federal statute. The Vermont court did not refer to any authority. The-decision was not thereafter followed. All said in it, regarding the subject under discussion, was declared to be obiter in Martin v. Hurlburt, 60 Vt. 364, 14 Atl. 649, and, so far as-it could be regarded, in any sense,- as a construction of the-federal statute, was-overruled. It was likewise overruled in Bullard v. Goodno, 73 Vt. 88, 50 Atl. 544. The following additional cases are in harmony with the later Kentucky and Vermont cases: Rozelle v. Rhodes, 116 Pa. St. 129, 134, 9 Atl. 160; Friend v. Garcelon, 77 Me. 25, 26; Crane v. Linneus, 77 Me. 59, 61; Cranz v. White, 27 Kan. 319; State v. Fairton S. F. & B. Asso. 44 N. J. Law, 376; Faurote v. Carr, 108 Ind. 126, 9 N. E. 350; Spelman v. Aldrich, 126 Mass. 113, 117; Hissem v. Johnson, 27 W. Va. [588] 644, 652; Rockwell v. Nat. Bank, 36 Hun, 583 ; Bull v. Case, 41 App. Div. 391, 58 N. Y. Supp. 774; Hathorn v. Robinson, 96 Me. 33, 51 Atl. 236; Martin v. Martin, 187 Ill. 200, 58 N. E. 230; Brown v. Balfour, 46 Minn. 68, 48 N. W. 604; and Recor v. Comm. & Sav. Bank, 142 Mich. 479, 106 N. W. 82. In many of the cases cited, Folschow v. Werner is referred to with disfavor. In no one of them, so far as we can discover, did the court have the benefit of a construction by the federal supreme court. Had such a construction existed at the time of Folschow v. Werner or the decisions which followed it in Iowa, and been called to the attention of the court, doubtless, such construction would have been followed. The subject seems to have been first presented to the federal supreme court in McIntosh v. Aubrey, 185 U. S. 122, 22 Sup. Ct. 561, where Crow v. Brown, 81 Iowa, 344, 46 N. W. 993, and Yates Co. Nat. Bank v. Carpenter, 119 N. Y. 550, 23 N. E. 1108, a similar case (based however on a statute — People ex rel. Jones v. Feitner, 157 N. Y. 363, 51 N. E. 1002), were condemned. Folschow v. Werner does not seem to have been cited to the attention of the court, else, doubtless, it would have met a similar fate. The' decision of the federal court is in this plain language: “The section of itself seems to present no difficulty. . . . We think the purpose of Congress is clearly expressed. It is not that pension money shall be exempt from attachment in all of its situations and transmutations. It is only to be exempt in one situation, to wit: when ‘due or to become due.’ From that situation the pension money,” having been paid to the pensioner and converted into other property, “ . . . had departed.” It follows from the foregoing that if Folschow v. Werner should be followed at all it should not be extended to cover the facts of this case, which are substantially identical with McIntosh v. Aubrey, supra. By the Court. — Judgment affirmed.