(dissenting). I agree with the majority that the ■divorce proceedings were a nullity. Jablonski v. Piesik, 30 N. D. 543, 153 N. W. 274; Atwood v. Tucker (Atwood v. Roan) 26 N. D. 622, 51 L.R.A.(N.S.) 597, 145 N. W. 587; Dallas v. Luster, 27 N. D. 450, 147 N. W. 95.
I do not, however, agree with the majority that §§ 8725 and 8727 of • the Compiled Laws of 1913 are exemption statutes.
Section 8725 provides that: “There shall also be set apart absolutely do the surviving wife or husband or minor children all the personal property of the testator or intestate which would be exempt from ■execution, if he were living.”
Section 8727 provides: “If the amount so set apart is insufficient -for the support of the widow and children or either and there is other ■estate of the decedent, the court may in its discretion order such rea*520sonable allowance out of tbe estate as shall be necessary for the maintenance of the family according to their circumstances during the progress of the settlement of the estate,” etc.
It is unquestionably true that at the common law no exemptions existed. 12 Am. & Eng. Enc. Law, 67. This is also generally true of the right to inherit. See Strauss v. State, 36 N. D. 594, L.R.A. 1917E, 909, 162 N. W. 908; Moody v. Hagen, 36 N. D. 471, L.R.A. —, —, 162 N. W. 704; Johnson v. Olson, 92 Kan. 819, L.R.A.1915E, 327, 142 Pac. 256. It is also true that the allowance paid to the wife and family of a deceased person are purely of statutory origin. 2 Am. & Eng. Enc. Law, 156. Do, then, §§ 8725 and 8727 of the Compiled Laws of 1913 include and contemplate nonresident aliens whose husbands have lived within the United States for fifteen years, but who themselves, during all of that time, have lived separate and apart from their husbands and in a foreign country, and who have no children ? I think they do.
The statute says nothing about residents or nonresidents, alienage or nonalienage, abandonment or nonabandonment. Section 8725 simply provides that “there shall be set apart absolutely to the surviving wife or husband, etc.”
It is in my opinion, and strictly speaking, a statute of succession or inheritance and distribution, rather than a statute of exemptions. See Farmers State Bank v. Smith, 36 N. D. 225, 162 N. W. 302; Farris v. Battle, 80 Ga. 187, 7 S. E. 262. It must be construed in connection with § 5729, Comp. Laws 1913, which provides that “aliens may take in all cases by succession as well as citizens.” It should also be considered in connection with the treaty of 1848 between the United States and Austria-Hungary, which provides that:
“Article 1: The citizens or subjects of each of the contracting parties shall have power to dispose of their personal property within the states of the other, by testament, donation, or otherwise; and their heirs, legatees, and donees, being citizens or subjects of the other contracting party, shall succeed to their said personal property, and may take possession thereof either by themselves or by others acting for them, and dispose of the same at their pleasure, paying such duties only as the inhabitants of the country, where the said property lies, shall be liable to pay in like cases.” See [9 Stat. at L. 944] 7 Fed. Stat. Anno. 417.
*521War not having yet been declared with Austria-Hungary, this treaty is still operative.
The language of the act is clear, and there can be no doubt of its meaning. Sammons v. Higbie, 103 Minn. 448, 115 N. W. 265 ; Mowser v. Mowser, 87 Mo. 437; Slack v. Slack, 123 Mass. 443; Welch v. Welch, 181 Mass. 37, 62 N. E. 982; Kellogg v. Graves, 5 Ind. 509; Singleton v. McQuerry, 8 Ky. L. Rep. 782; Mitcham v. Moore, 73 Ala. 542; Stromberg v. Stromberg, 119 Minn. 325, 138 N. W. 428; Grieve’s Estate, 165 Pa. 126, 30 Atl. 727; Comerford v. Coulter, 82 Mo. App. 362. See also as to right generally Woods v. Teeson, 31 N. D. 610, 154 N. W. 797.
Nor is there, in my opinion, any merit in the contention that non-residence or alienage precludes the plaintiff and respondent from taking, under § 8727, Compiled Laws of 1913, which provides that “if the amount so set apart is insufficient for the support of the widow and children or either, and there is other estate of the decedent, the court may in its discretion order such reasonable allowance out of the estate as shall be necessary for the maintenance of the family according to their circumstances during the progress of the settlement of the estate, which in ease of an insolvent estate must not be longer than one year after the granting letters testamentary or of administration.”
As was said by the supreme court of Georgia in Harris v. Battle, supra: “In the view we take of the law, the provision for year’s support is a branch of the Statute of Distributions, and the persons entitled to it are just as much and as absolutely entitled as they are in case of intestacy to a distributive share of the residue after the year’s support is deducted and all debts are paid. It is a branch of the Statute of Distributions, and prescribes how the estate of a deceased person to this extent is to be disposed of. Creditors are left out, and adult children are left out, until this much of the estate is withdrawn from it. Then they are admitted for participation in the balance. They have no right to anything except by the Statute of Distributions. To tales at all, they must loole to the lato, and must talee according to law. This being so, we consider that the special provision applicable to the widow and minor children gives them this much advantage over other distributees. It makes their part of the estate that much more, and they take it as absolutely and unconditionally, and for as long a time, as distributees *522fake under the general provisions of the statute. It requires nothing to give a right to this benefit, except the relation of wife or minor child. When that relation exists at the time of the death, the person or persons sustaining it are entitled to make their claim under the terms of the statute.” See also Farmers State Bank v. Smith, 36 N. D. 225, 162 N. W. 302; Banse v. Muhme, 13 Ohio C. C. 501, 7 Ohio C. D. 221.
I have carefully examined the cases cited by counsel for appellant. In nearly all of them, however, the court was either dealing with the discretion of the trial judge in refusing to award an extra allowance, or the court erroneously treated the right as a right of exemptions rather than of inheritance (see Ex parte Pearson, 76 Ala. 521; Allen v. Manasse, 4 Ala. 555; Barber v. Ellis, 68 Miss. 172, 8 So. 390; Emmett v. Emmett, 14 Lea, 370) ; or there was no constitutional or statutory provision such as ours entitling the alien to inherit, or the right involved was a homestead right, where a home and a residence was essential to the claim (see Alston v. Ulman, 39 Tex. 158; Stanton v. Hitchcock, 64 Mich. 326, 8 Am. St. Rep. 821, 31 N. W. 395) ; or the estate of a nonresident, as well as the claim of a nonresident, was involved and the statute therefore held not applicable. See Smith v. Howard, 86 Me. 205, 41 Am. St. Rep. 537, 29 Atl. 1008; Hascall v. Hafford, 107 Tenn. 355, 89 Am. St. Rep. 952, 65 S. W. 423; Graham v. Stull, 92 Tenn. 673, 21 L.R.A. 241, 22 S. W. 738; Farris v. Sipes, 99 Tenn. 298, 41 S. W. 443; Shannon v. White, 109 Mass. 146; Hichardson v. Lewis, 21 Mo. App. 531.
I cannot, it is true, so distinguish the Pennsylvania cases of Spier’s Appeal, 26 Pa. 233; Hettrick v. Hettrick, 55 Pa. 290; Odiorne’s Appeal, 54 Pa. 175, 93 Am. Dec. 683. These cases, however, I believe are hardly in the line of authority, and seem to consider the matter in the light of a claim to an allowance to the poor rather than a right of succession or inheritance, and no reference is made therein to any statutory enactment which allowed the alien to inherit.
I am also not unaware of the case of Tromsdahl v. Beaton, 27 N. D. 441, 52 L.R.A.(N.S.) 746, 146 N. W. 878. In this case, however, there was involved the right merely of a nonresident wife on an alleged homestead as against a mortgagee; the wife not having joined in the execution of the mortgage. The wife had never at any time made her home upon the land, nor did it appear that she was in the country at the time *523of the execution of the mortgage. The husband also had left the land soon after the mortgage was executed.
There is also, in my opinion, no merit in the contention that appellant’s motion for a new trial was wrongly denied. No diligence was shown to produce the newly discovered evidence, and, above all, there is no reason to believe that a new trial would change the result in any way. All that it would tend to show, at the most, would be that the appellant was not without fault, and that her husband had not illtreated her while in Hungary. This would not negative the fact that she was still his wife, and, if she was his wife at the time of his decease, she was entitled to recover.
Nor is there any merit in the contention that improper evidence was admitted in regard to the character of the deceased. The question at issue is really a question of law. It was whether a divorce had been had or not been had, or whether the petitioner was the wife of the deceased at the time of his death. The evidence on the other matters could have had no effect upon the judgment.
Nor these reasons I am of the opinion that the judgment of the district court should be affirmed.