In re Estate of Lamoureux

In the Superior Court of the State of California

In and for the County of Alameda.

Decision No. 27577. Dept. No. 4,

In the matter of the estate of Artel Lamoureux, deceased.

This matter comes before the Court on petition of the widow of the deceased to have the entire estate set aside to her under Section 1469 C. C. P. The net value of the estate, after making the deductions permitted by the section, exceeds $1500, but is not more than $2500. The deceased died prior to the going into effect of the amendment of 1921 (July 29, 1921) increasing the value of the estate to be set aside from $1500 to $2500. The widow has not since remarried.

The question therefore arises: Is the amendment increasing the value of the estate that may be set ¡aside applicable to cases where the decedent died before July 29th, 1921?

All problems of statutory construction resolve themselves into questions of legislative intent, that intent to be determined by the application of certain guiding \iules. Two of these rules bear upon the question here involved:

<1) No law shall be interpreted so as to aifeet vested rights, unless its language clearly requires such interpretation. (2) A retrospective law affecting vested rights is unconstitutional because it takes property without due process of law.

If the application of said amendment to cases where the decedent died prior to July 29th would affect rights then vested, it wold follow that the Legislature did not intend such a construction to be given, and the amendment would be prospective in effect only.

It is a well settled rule in this and many other States that Legislative acts are not to be considered retrospective unless the intent to make them so clearly appears from their terms.

Holmberg vs. City of Oakland, 36 C. A. D. 746.

Vanderbilt vs. All persons, 163 Cal. 507 .

Estate of Frees, 62 C. D. 405-8.

In the Holmberg case the Court said: (quoting from 36 Cyc. 1205) “It is a rule of statutory construction that all statutes are to be construed as having only a prospective operation, unless the purpose and intent of the Legislature to give them a retrospective effect is expressly declared, or is necessarily implied from the language used. In every case of doubt the doubt must be solved against the retrospective effect.”

In that case the charter provision was to the effect that “Any officer or member of the police department sustaining an injury while in the performance of his

So we find in Section 1469: “If a deceased person.' leave a widow * * and upon the return of the inventory of the estate of such deceased person it shall appear to the Court or a judge thereof by the. verified petition * * ” That clearly is in the future tense. Further portions of the section confirm this interpretation. ■ The title to all property vests in the heirs, devisees and legatees immediately upon the death, and cannot be divested by legislative acts except for the “purposes of administration.” What are the “purposes of administration?” This is answered in Justice Harrison’s concurring opinion in the case of Smith v. Olmsted, 88 Cal. 582 , 588, quoting from Section 1402 C. C. and italicizing as follows: “Upon the death of the husband, one-half of the community property goes to the surviving wife, and the other half goes to his descendants, . . subject ta •his debts, the family allowance, and expenses of administration.” The Court continues: “These are the purposes of administration referred to in Section 1384 of the Civil Code, and are also the objects for which the Court is authorized, under Section 1536 of the Code of Civil Procedure, to direct a sale of the property of the decedent.” And the Court holds: that the rights of all parties vest at the death..

In Estate of Packer, 125 Cal. 396 , it was held that “Upon the death of the ancestor, the heirs become at once vested with the full property in his real estate, subject only to liens or burdens then existing or created by statutes then in force; and the Legislature

See also Estate of Bazzura, 161 Cal. 71 , where it was held that the title vesting in the heirs before the law was enacted, could not be impaired or burdened .by subsequent legislation imposing burdens not before existing; and this, because of constitutional limitations to legislative power over vested rights.

See, also, Gutter v. Dallamore, 144 Cal. 665 .

The case af Sheehy v. Myers, 93 Cal. 289 , has been cited by counsel for petitioner, and seems to be the only case holding contrary to the general line of the foregoing! cases. But it can be distingushed. In that case the constitutionality of the retrospective Act of the Legislature was not considered. The Court held that there was an expressed intent of the Legislature in amending the law of 1879, in 1880, and again in 1882 restoring it as it originally was, that it should always be the law. However, it must be considered that the Supreme Court only recited these facts in order to arrive at the gist of the decision, to-wit, that no specific performance would be decreed compelling the purchaser to pay $10,000 for a piece of property upon which there was a cloud in the title by reason of the change in the law on the sale of minors’ interests In probate proceedings. The concurring opinion of Mr. Justice Harrison on page 297 seems to bear out this view; and on page 299 he says: “It is a settled rule of this Court that under a contract for the sale of land which provides for perfect title, a title must be free from reasonable doubt and fairly deducible of record.”

It has been contended that the time of the return of the inventory determines the right to the setting aside of the property. This cannot be true, because all property rights vest at the time of the death, as

It has also been contended that, to illustrate, If A died fifteen years before the change in the law and his administrator was thereupon appointed, if the inventory were not returned until after the change in the law, say fifteen years after the death of A, the return time of the inventory would fix the right and status of the petitioner. This could not be true, because it would be placing a premium on negligence, and the law requires that the inventory shall be returned within three months from the appointment of the administrator (Sec. 1443 C. C. P.) or if the administrator neglects to make such a return within three months,, the Court or Judge may extend the time not exceeding two months (Section 1450 C. C. P.).

The Court greatly regrets that it is unable to grant the petition herein, as the interests of the widow and minor child are paramount to any other. But under the law as this Court finds it, the petition must be denied. ! ! rl

It is so ordered.

E. C. Robinson, Judge.

Dated, February 15, 1922.