Von Rosenberg v. Perrault

Citations

• 5 Idaho 719
• 51 P. 774
• 1898 Ida. LEXIS 7

Syllabus

<p>Status of Community Property upon Death of One Spouse Under the Law of 1874 — Surviving Spouse Holds the Legal Title One-half for Himself, the Other in Trust for the Lawful Heirs, the Children. — S. and wife acquired lands during coverture, the title being conveyed to S. in 1871 and 1873; the wife died in 1877, leaving .her husband and four children surviving her; S. again married; in 1887, S. and his second wife by deed, for the consideration of $7,450, conveyed said lands to K.; in 1895, the children of S. and his deceased wife. brought suit against the heirs of K., who had died, for a partition of the said lands, claiming under their deceased mother by reason of an act passed in 1874, and repealed in 1879, giving the community property, on the death of one spouse, oneJialf to the surviving spouse, the other half to the descendants of the deceased spouse, subject to debts of the deceased; plaintiffs did not allege or prove the extent of the assets and liabilities of the community at the death of their deceased mother, nor that the community was free from debt, nor that K. purchased with notice of their claims; the trial court gave judgment of nonsuit, from which plaintiffs appealed. Held, that the surviving spouse held the legal title one-half for himself, the other in trust for plaintiffs; that the husband could sell the lands to pay community debts, and that the existence of such debts and of the necessity of the sale are presumed from the lapse of time and that the judgment of nonsuit was proper.</p> <p>(Syllabus by the court.”)</p>