Lemp v. Lemp , 32 Idaho 397 ( 1919 )

BUDGE, J.

This is an appeal from a judgment of the district court reversing a judgment of the probate court of Ada county, setting aside the proceeds of two insurance policies on the life of Edward Lemp, deceased, to Mary W. Lemp, his widow.

Lemp died September 6, 1912, testate, holding two policies for $2,500 each in the New York Life Insurance Company, the annual premiums of which aggregated less than $250.

The probate court set aside the proceeds of these policies to) the widow, on the theory that they were community property, and did not pass by the will. The district court reversed the judgment on the theory that the proceeds of the policies were separate property, and passed by the will to the legatees, Herbert and Bernard Lemp, brothers of the deceased.

In order that final disposition might be made of the subject matter in litigation, a stipulation was entered into by counsel for the respective parties, and filed in the probate court, to the effect that the petition should be considered amended so as to permit the court to make such order with reference to such proceeds as the law may require. The question, therefore, is presented whether under any provision of the law the widow, upon her application therefor, would be entitled to have set aside to her the proceeds of the insurance policies.

As we view the case, it is immaterial, and hence unnecessary for us to determine, whether the proceeds of these policies were community or separate property. ■ _

C. L., sec. 5441, provides in part as follows:

“Upon the return of the inventory, or at any subsequent time during the administration, the court or the probate judge may, on his own motion or on petition therefor, set apart for the use of the surviving husband or wife, or the minor children of the decedent, all property exempt from execution.....”

C. L., see. 4480, subd. 9, exempts:

“All moneys, benefits, privileges or immunities, accruing or in any manner growing out of any life insurance on the life of the debtor, to an amount represented by an annual premium not exceeding two hundred and fifty dollars.”

Under sec. 5441, supra, it was the duty of the probate court or judge, either on his own motion or on petition as in this case, to set apart for the use of the surviving wife all property exempt from execution. (Estate of Miller, 121 Cal. 353, 53 Pac. 906; Holmes v. Marshall, 145 Cal. 777, 104 Am. St. 86, 2 Ann. Cas. 88, 79 Pac. 534, 69 L. R. A. 67.)

In the latter case, the supreme court of California, said:

“In construing this statute, as in the construction of all statutes, it is thé duty of the court to arrive at the intent of the Legislature, if it can be done, from the language used in the statute. Statutes exempting property from execution are enacted on the ground of public policy, for the benevolent purpose of saving debtors and their families from want by reason of misfortune or improvidence. The general rule now is to construe such statutes liberally, so as to carry out the intention of the Legislature and the humane purpose designed by the lawmakers: 12 Am. & Eng. Ency. of Law, 2d ed., pp. 75, 76, and cases cited; In re McManus, 87 Cal. 292, 294, 22 Am. St. 250, and note, 25 Pac. 413, 10 L. R. A. 567; Spence v. Smith, 121 Cal. 536, 66 Am. St. 62, 53 Pac. 653, 933.....”

“As to the policy payable to, and collected by the estate, the estate was the beneficiary, and the money was for the reasons before stated exempt from execution. It was, therefore, assets of the deceased exempt from execution, and was properly set apart to the widow as being so exempt; Code Civ. Proc., sec. 1465; Estate of Miller, 121 Cal. 353, 53 Pac. 906. The administrator or executor is not the owner of any part of the estate. He, in his official character, only holds it in trust for the parties entitled to it, subject to the purposes of administration. The title to the insurance money came to respondent Annie J. Jenkins, through the estate, and under the order setting it apart, and vested the title in her as effectively as if she had been named as the beneficiary of the policy. We can see no reason why the insurance money coming to her directly as beneficiary should be exempt from execution, and not that coming to her indirectly through the estate and the order setting it apart. In either ease it is exempt from execution. In one case the instrument of life insurance gives the title, in the other the law gives it to her. The statute provides that all property exempt from execution shall be set apart for the use of the surviving husband or wife: Code Civ. Proc., sec. 1465. ’ ’

In view of the stipulation and the provisions of C. L., sec. 5441, the probate court was bound to set aside the exempt property for the surviving spouse, the words therein “may set apart” being construed to mean “must set apart.” (Estate of Ballentine, 45 Cal. 696; In re Still, 117 Cal. 509, 513, 49 Pac. 463; In re Davis, 69 Cal. 458, 10 Pac. 671.)

Nor do we think it is material or necessary to determine whether the proceeds of these policies purported to pass by the will. The right of the surviving wife is superior to any devise or bequest of such property. (In re Davis, supra; Estate of Ballentine, supra; Sulzberger v. Sulzberger, 50 Cal. 385.)

In the latter case, the court said:

“The power of testamentary disposition of property, as conferred and defined by statute, is not paramount, but is subordinate to the authority conferred upon the probate court, to appropriate the property for the support of the family of the testator, and for a homestead for the widow and minor child or children as well as for the payment of the debts of the estate.”

To the same effect are In re Lahiff’s Estate, 86 Cal. 151, 153, 24 Pac. 850; In re Walkerley’s Estate, 77 Cal. 642, 20 Pac. 150; Eproson v. Wheat, 53 Cal. 715; Estate of Huelsman, 127 Cal. 275, 59 Pac. 776; In re Kennedy’s Estate, 157 Cal. 517, 522, 108 Pac. 280, 282; In re Levy’s Estate, 141 Cal. 646, 652, 99 Am. St. 92, 75 Pac. 301; In re Gray’s Estate, 159 Cal. 159, 160, 112 Pac. 890.

The judgment of the district court is reversed, and the cause is remanded with instructions to enter up a judgment affirming the order of the probate court setting aside the proceeds of the policies to appellant. Costs are awarded to appellant.

Morgan, C. J., and Rice, J., concur.