MacDonnell v. Arnott
MacDonnell v. Arnott
Opinion of the Court
OPINION
By the Court,
The deceased died in Reno, Nevada, in 1935, having a wife and four children living in California. By his will the deceased bequeathed his entire estate, which consisted of the proceeds of a- life insurance policy in the amount of $3,000, the annual premium of which
It is • the contention of appellants that it was discretionary ■ with the lower court to set aside said insurance money to the heirs, and that, in the exercise of its discretion, it should have refused to set it aside; whereas respondents contend that the court had no discretion in the matter and was legally bound to set it aside as it did.
The determination of the point involved depends upon the correct construction of a portion of the section of our civil practice act pertaining to exemptions, being section 8844 N. C. L., and to section 101 of “An Act to regulate the settlement of the estates of deceased persons” (Stats. 1897, c. 106), being section 9700 N. C. L.
The section in question pertaining to exemptions, so far as is here material, provides: . “The following property is exempt from execution. * * * All moneys, benefits, privileges, or immunities accruing or in any manner growing out of any life insurance, if the annual premium paid does not exceed five hundred dollars, and if they exceed that sum a like exemption shall exist which shall bear the same proportion to the moneys, benefits, privileges, and immunities so accruing or growing out of such insurance that said five hundred dollars bears to the whole annual premium paid.”
Section 101 of the act pertaining to the settlement
The lower court, in making its order setting aside-the insurance money, relied upon the following decisions of this court and authorities cited therein, and indicated that but for these decisions it would have ordered otherwise. The decisions referred to are: In re Lavendol’s Estate, 46 Nev. 181, 182, 209 P. 237; In re Foster’s Estate, 47 Nev. 297, 220 P. 734; Hunter v. Downs, 53 Nev. 132, 295 P. 438.
In the year 1873, several years prior to the consideration of this question in Re Walley’s Estate, 11 Nev. 260, the supreme court of California, in Re Estate of Ballentine, 45 Cal. 696, in disposing of the question here presented, under the provisions of the civil practice act of California, substantially the same as are the provisions of our civil practice act, held that a homestead should be set aside. The ruling thus made by the supreme court of California has been consistently adhered to' in that state, as shown by the following decisions: In re Millington’s Estate, 63 Cal. App. 498, 218 P. 1022; Mahoney v. National Surety Co., 89 Cal. App. 148, 264 P. 304; In re Ehler’s Estate, 115 Cal. App. 403, 1 P. (2d) 546. The rule laid down in Re Ballentine’s Estate, supra, was followed by the supreme court of Idaho in Lemp v. Lemp, 32 Idaho, 397, 184 P. 222.
The California statute, corresponding to section 9700 N. C. L., was amended in 1931 so as to provide that the court may “in its discretion” set apart, etc. See Deering’s Codes 1931, Probate Code, sec. 660, p. 1417.
We feel that the legislature might well consider the advisability of amending section 9700 N. C. L. as the California legislature amended its law in 1931.
Orders affirmed.
Reference
- Full Case Name
- In Re MacDONNELL'S ESTATE MacDONNELL v. ARNOTT
- Status
- Published