Page:North Dakota Reports (vol. 48).pdf/881

 statutory allowances and exemptions. The complaint is weak in its allegations to set aside the agreements, nevertheless, under liberal rules of construction applied to pleadings, we are not prepared to say, as a matter of law, that the complaint does not present a cause of action sufficient to support findings in equity of failure to disclose fairly the property of the deceased and of injustice and overreaching thereby resulting.

We are of the opinion, further, that the complaint states a cause of action in equity for allowance of the widow’s exemptions. To secure such allowance, this action in equity, based upon grounds of fraud, deception, or misrepresentation, is available and not an action or proceeding in the county court to vacate the final decree after the lapse of one year. Reichert v. Reichert, 41 N. D. 253, 170 N. W. 621. The defendants admit that the county court should have allowed the widow her exemptions. Their contention is that the county court may now do so by correcting the final decree, nunc pro tunc.

In this appeal a question has arisen concerning the amount of ex- emptions to which the widow is entitled. The construction of § 8725, C. L. 1913, is involved. This statute provides:

“There shall also be set apart absolutely to 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, including all property absolutely exempt and other property selected by the person or persons entitled thereto to amount in value of $1,500.00 according to the appraisement,” etc.

Is the widow entitled to receive, in addition to property absolutely exempt, only $1,500 in other property, or is she entitled to an additional $500?

Section 7730, C. L. 1913, provides for the absolute exemptions allowed the head of the family, while alive, from levy and sale upon execution, etc. Section 7731, C. L. 1913, provides that such head of the family may select, from all other of his personal property not absolutely exempt, property not to exceed $500 in value. This statute was in force when the husband died. The present statute amending § 7731 now al- lows $1,000. Chap. 128, Laws 1919. It is apparent that there are two different statutes; one applying to the property of a person, the head of a family and while alive; the other applying to the property of a person upon his death. Woods v. Teeson, 31 N. D. 610, 154 N. W. 797. Formerly, $1,500 was allowed, as an additional exemption, to the head of a