SETTLEMENT OF THE ESTATE--DESCENT AND DISTRIBUTION OF PROPERTY.
[Sidenote: Exempt personal property.]
When the deceased leaves a widow, all the personal property which, in
his hands as head of the 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 be exempt in her hands as in the hands of
the decedent. [§3575.] This provision secures an advantage to the wife
which does not exist in favor of the husband. Upon the death of the wife
all personal property belonging to her, whether exempt or not, passes to
her administrator to be distributed by him among her heirs. A widow is
not entitled to pension money, although the same was exempt in the hands
of her husband, the exemption being for the benefit of the pensioner as
such, and not as head of a family.
[Sidenote: Life insurance.]
The avails of any life insurance or any other sum of money made payable
by any mutual aid or benevolent society upon the death of a member of
such society, are not subject to the debts of the deceased, except by
special contract or arrangement, but shall in other respects, be
disposed of like other property left by the deceased. [§3576.] A policy
of insurance on the life of an individual, in the absence of an
agreement or assignment to the contrary shall inure to the separate use
of the husband or wife and children of said individual, independently of
his or her creditors. And the avails of all policies of insurance on the
life of an individual payable to his surviving widow, shall be exempt
from liabilities for all debts of such beneficiary contracted prior to
the death of the deceased, provided that in any case the total exemption
for the benefit of any one person shall not exceed the sum of five
thousand dollars. [§1756, Sup.] The contract between the assured and the
insurance company, cannot be changed in any particular without the
consent of the company, and a testator cannot, by will, change the
beneficiary named in the policy unless it is expressly so provided in
the contract. Where a policy is made payable to the assured or his legal
representatives, the proceeds of the policy will pass to the
administrator of his estate, and will be paid to the wife and children,
but no part can be distributed to other heirs. If the assured leaves a
wife or husband and no children, the entire proceeds of the policy will
go to the wife or husband, and after they have passed into the hands of
the beneficiary, they will not be subject to execution for the payment
of his or her debts, provided they do not exceed the sum of five
thousand dollars.
A wife is not her husband's "legal heir" and the entire proceeds of a
policy or certificate of insurance made payable to the assured or his
"legal heirs" will go to the children of the deceased.
[Sidenote: Allowance to widow and children.]
The court shall if necessary, set off to the widow and children under
fifteen years of age, of the decedent, or to either, sufficient of the
property of such kind as it shall deem appropriate to support them for
twelve months from the time of his death. [§3579.] The allowance to the
widow takes priority over all other claims against the estate, and
should be paid immediately. If the widow and children have no other
means of support the allowance may be made though the estate is
insolvent. It is no part of the dower interest, but is a separate and
distinct right which may be made in addition to dower, or even in cases
where by contract made before marriage, all rights to dower and
inheritance have been relinquished. Real estate may be sold if
necessary, where the personal property is not sufficient to provide for
the allowance to the widow and children, and the widow may claim the
allowance although there are no children, and she may have property of
her own, if the income of such property is not sufficient for her
support.
[Sidenote: Expenses of funeral.]
As soon as the executors are possessed of sufficient means, over and
above the expenses of administration, they shall pay off the charges of
the last sickness and funeral of deceased. [§3622.]
[Sidenote: Allowance.]
They shall, in the next place, pay any allowance which may be made by
the court for the maintenance of the widow and minor children. [§3623.]
After the funeral expenses and the allowance to the widow and children
have been paid, the claims against the estate will be discharged in the
order provided by law, after which, the balance of the property, devised
by will after all expenses of administration have been paid, will be
distributed to the different legatees.
[Sidenote: Descent and distribution. Personal property.]
The personal property of the deceased, not necessary for the payment of
debts, nor otherwise disposed of as hereinbefore provided, shall be
distributed to the same persons and in the same proportions as though it
were real estate. [§3640.] A husband cannot, by will, deprive his wife
of her share in his personal estate, after his death, but he may dispose
of it during his lifetime in any manner he may choose.
[Sidenote: Payment.]
The distributive shares shall be paid over as fast as the executors can
properly do so. [§3641.]
[Sidenote: In kind.]
The property itself shall be distributed in kind whenever that can be
done satisfactorily and equitably. In other cases the court may direct
the property to be sold, and the proceeds to be distributed. [§3641.]
[Sidenote: Partial distribution.]
When the circumstances of the family require it, the court, in addition
to what is hereinbefore set apart for their use, may direct a partial
distribution of the money or effects on hand. [§3643.]
[Sidenote: Share of husband or wife.]
[Sidenote: Dower and curtesy.]
One-third in value of all the legal or equitable estates in real
property, possessed by the husband at any time during the marriage,
which have not been sold on execution or other judicial sale, and to
which the wife has made no relinquishment of her right, shall be set
apart as her property in fee-simple, if she survive him. The same share
of the real estate of a deceased wife shall be set apart to the
surviving husband. All provisions made in this chapter in regard to the
widow of a deceased husband, shall be applicable to the surviving
husband of a deceased wife. The estates of dower and curtesy are hereby
abolished. [§3644] While the estate of dower is abolished by statute,
and a wife takes her distributive share of the property in its stead,
yet this distributive share is still commonly designated by the term
"dower." The dower interest of the wife is not subject to the debts of
her husband. A wife may release her right of dower in real property by
joining in a joint deed with her husband, although the deed may contain
no express relinquishment of dower. Contracts between husband and wife,
though for a legal and valuable consideration, or with a view to
separation are invalid, the interest of either during the lifetime of
both, being merely contingent and inchoate, but an agreement previous to
marriage by which each waives all right in the other's estate, or by
which the wife relinquishes her right of dower, is valid. A woman can
claim no dower in her husband's estate, after his death, if she has
procured a divorce from him while living and the divorce is in force at
the time of his death. Where the provisions of a will gives the wife a
certain interest in the estate, she may always elect whether she will
take her dower interest or under the will.
[Sidenote: Homestead.]
The distributive share of the widow shall be so set off as to include
the ordinary dwelling-house given by law to the homestead, or so much
thereof as will be equal to the share allotted to her by the last
section, unless she prefers a different arrangement. But no different
arrangement shall be permitted where it would have the effect of
prejudicing the rights of creditors. [§3645.] If the distributive share
of either husband or wife is set out to the survivor from the homestead,
it will still retain its homestead character, and will be exempt from
execution for the payment of debts.
[Sidenote: Widow of alien.]
The widow of a non-resident alien shall be entitled to the same rights
in the property of her husband, as a resident, except as against a
purchaser from the decedent. [§3646.] The term "non-resident alien" does
not refer to one who resides out of the United States, but to
non-residents of the state, who may reside in other states; the purpose
of the statute being to encourage the purchase of lands within the state
from non-resident owners, and to protect purchasers of such real estate
from claims for dower or distributive share therein.
[Sidenote: How set off.]
The share thus allotted to her may be set off by the mutual consent of
all parties interested, when such consent can be obtained, or it may be
set off by referees appointed by the court. [§3647.]
[Sidenote: Application]
The application for such measurement by referees, may be made any time
after twenty days and within ten years after the death of the husband,
and must specify the particular tracts of land in which she claims her
share, and ask the appointment of referees. [§3648.]
[Sidenote: Widow's share not affected by will.]
The widow's share cannot be affected by any will of her husband, unless
she consents thereto within six months after notice to her of the
provisions of the will by the other parties interested in the estate,
which consent shall be entered on the proper records of the district
court. [§3656.] This provision applies equally to the husband's rights
under the will of the wife, and it applies to wills made before
marriage, as well as to those executed after marriage. Where there is no
express provision in the will that a devise to the wife is in lieu of
dower, she will take her distributive share of the estate in addition to
the property devised to her by will, unless the allowance of dower would
be inconsistent with other provisions of the will. The devise of a life
estate to a wife will not defeat her right to her distributive share in
the real estate owned by the husband at the time of his death.
[Sidenote: Descent. To children.]
Subject to the rights and charges hereinbefore contemplated, the
remaining estate of which the decedent died, shall, in the absence of
other arrangements by will, descend in equal shares to his children.
[§3657.]
[Sidenote: Share of deceased child.]
If any one of his children be dead, the heirs of such child shall
inherit his share in accordance with the rules herein prescribed in the
same manner as though such child had outlived his parents. [§3658.] The
mother of a child which dies while both of its parents are living
cannot, upon the death of its father, claim any share in his estate, as
heir of such child.
[Sidenote: Wife and parents.]
If the intestate leave no issue, the one-half of his estate shall go to
his parents and the other half to his wife; if he leaves no wife, the
portion which would have gone to her, shall go to his parents, [§3659.]
The one-third which the wife takes as her distributive share is all that
may be held exempt from debts. The additional share of the estate which
she takes in case there are no children, is subject to claims by
creditors of the husband.
[Sidenote: Surviving parents.]
If one of his parents be dead, the portion which would have gone to such
deceased parent, shall go to the surviving parent, including the portion
which would have gone to the intestate's wife had she been living.
[§3660.]
[Sidenote: Heirs of parents.]
If both parents be dead, then the portion which would have fallen to
their share, by the above rules shall be disposed of in the same manner
as if they had outlived the intestate and died in the possession and
ownership of the portion thus falling to their share, and so on through
ascending ancestors and their issue. [§3661.]
[Sidenote: Wife and her heirs.]
If heirs are not thus found, the portion uninherited shall go to the
wife of the intestate, or to her heirs if dead, according to like rules;
and if he has had more than one wife who either died or survived in
lawful wedlock, it shall be equally divided between the one who is
living and the heirs of those who are dead, or between the heirs of all,
if all are dead, such heirs taking by right of representation. [§3662.]
[Sidenote: Advancement.]
Property given by an intestate by way of advancement to an heir, shall
be considered part of the estate so far as regards the division and
distribution thereof, and shall be taken by such heir, towards his share
of the estate at what it would now be worth if in the condition in which
it was given to him. But if such advancement exceeds the amount to
which he would be entitled, he cannot be required to refund any portion
thereof. [§3663.] A gift to an heir by way of advancement, cannot be
considered as any part of the estate for the purpose of increasing the
distributive share of the widow, but is to be estimated as part of such
heir's share of the property, after the allowance to the wife of her
interest.
[Sidenote: Where there are no heirs.]
If there be property remaining uninherited, it shall escheat to the
state. [§3665.]
[Sidenote: Illegitimate children. Inherit from mother.]
Illegitimate children inherit from the mother and the mother from the
children. [§3670.] A child born at any time during lawful wedlock is
presumed by the law to be legitimate, but where questions of inheritance
are involved, this presumption may be overcome by proof to the contrary.
[Sidenote: Inherit from father.]
They shall inherit from the father whenever the paternity is proven
during the life of the father, or they have been recognized by him as
his children, but such recognition must have been general and notorious
or else in writing. [§3671.] The recognition in writing need not be a
formal avowal. Any writing, as by letter or otherwise, is sufficient.
For the purposes of inheritance an illegitimate child stands on exactly
the same footing as if it were legitimate after it has been recognized
by the father, and the birth and recognition of such child revoke a will
in the same manner as the birth of a legitimate child, subsequent to the
execution of the will.
[Sidenote: Father inherits from child.]
Under such circumstances, if the recognition of relationship has been
mutual, the father may inherit from his illegitimate children. [§3672.]