Colvin v. HutchisonColvin v. Hutchison
The facts are undisputed. The land in question belonged to John H. Livingston, a resident of Bond County, Illinois, who died in January, 1931, leaving a will which devised this land in fee to appellant. His will gave only a life estate in other land to Mary M. Livingston, the wife of the testator. This will was probated in Bond County, Illinois, and the executor qualified there. Mary M. Livingston was adjudged insane and H. W. Riedemann was appointed and qualified as conservator of her estate in May, 1931. Thereafter, during the same month, Riedemann filed on behalf of Mаry Livingston, in the recorder‘s office in Bond County, Illinois, a duly acknowledged renunciation of this will which also stated an election for her, as follows: “I, H. W. Riedemann, conservator of the said Mary M. Livingston, for and on behalf of her, the said Mary M. Livingston, do hereby elect for her, the said Mary M. Livingston, in lieu of such devisе to her made by the terms and provisions of the Last Will and Testament of the said James H. Livingston, deceased, to take the dower and legal share in said estate to her, the said Mary M. Livingston.” Appellant says: “No question is made of the sufficiency of said renunciation and election as to form аnd time of its execution and filing in Bond County, Illinois.” This renunciation and election was not filed in St. Louis and nothing else in the nature of an election was shown to have been filed anywhere. Mary Livingston died May 28, 1931, without making any disposition of this land
The question for decision is: What was the effect, upon the widow‘s rights in the real estate of her husband located in St. Louis, Missouri, of the renunciation and election filed in Bond County, Illinois? Appellant contends that the renunciation and election filed there had no effect at all upon the title to the Missouri land and that it, therefore, has passed under the devise in the will to appellant.
The whole doctrine of election rests upon the equitable ground that no one can be permitted to claim inconsistent rights with regard to the same subject. If the benefits given by a will are accepted, this is usually held to be an adoption of the whole will and a renunciation of every right or claim inconsistent with it. [Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S. W. 201, and cases cited; Lindsley v. Patterson (Mo.), 177 S. W. 826, L. R. A. 1915F, 680; 69 C. J. 1090, sec. 2330; 28 R. C. L. 331, sees. 319-320.] In the absence of statutory requirеments, an election or renunciation may be made or implied from unequivocal declarations or acts showing such intent. [69 C. J. 1114, secs. 2386-2410; 82 A. L. R. 1509, note.] As pertaining to the rights of a widow in real estate of her deceased husband, the right of election arises from the fact that she has rights of ancient оrigin under the common law which cannot be taken from her by any act or obligation of her husband. [9 R. C. L. 601, sec. 43; 19 C. J. 458-61, secs. 4-12; Ambrose v. Rugg (Ohio), 175 N. E. 691, 74 A. L. R. 449; 1 Woerner‘s Law of Administration, 330, Chap. XI.]. These rights have been modified, added to, and the choice of other rights in lieu thereof provided by statute. When a husband by will provides for his wife rights which are different from and inconsistent with rights which she would have without a will, she may take her choice between testamentary benefits and legal rights. These matters are now largely regulated by statutory enactments. [For our statutes see Art. 15, Chap. 1, R. S. 1929, and particularly Secs. 332 and 333; for Illinois statutes see Secs. 10-13, Chap. 41, R. S. Illinоis, as amended by Laws 1925, p. 344, Illinois Bar Association Edition, Revised Statutes 1935.] Appellant‘s theory here is that the renunciation made herein was good in Illinois, the will was invalid as to Mary M. Livingston there, and she took her rights in real estate there against the provisions of the
There are cases holding that a renunciation must be filed in the state where the land is located. [Apperson v. Bolton, 29 Ark. 418 (based on statute making will control unless action taken within certain time); Rannels v. Rowe, 166 Fed. 425 (applying decision of Arkansas court to claim to land there); McGinnis v. Chambers, 156 Tenn. 404, 1 S. W. (2d) 1015, 82 A. L. R. 1492 (cites and follows Apperson v. Bolton).] However, we note the following statement in the Arkansas case: “It has been suggested that if a dissent in Tennessee is not a valid dissent in Arkansas, an acceptance of the provisions of a will in Tennessee would not be binding here; and that if Bolton had devised to his wife his whole estate in Tennessee, no matter how large, she might have accepted it, and then dissented in Arkansas, and claimed dower in the estate here. But we think, though the point is not before us, that she would not be permitted to do that, for it is a general principle of law that one cannot claim under a will and against it too, and an acceptance of the provisions of the will in Tennessee would bind her everywhere.” Surely it is a poor rule that will not work both ways. We think that the reason of the matter is thаt, when a man dies owning real estate in several states, leaving a will providing for his wife benefits which under the law she would take in place of dower if she accepted it, his widow‘s situation is as follows: The will offers her certain testamentary benefits; each state offers her instead certain
We, therefore, have no difficulty in reaching the conclusion that the widow Mary Livingston was not bound by the provisions of her husband‘s will but could take her rights under the law in the Missouri land. But this necessarily presents for our decision a more difficult question, namely: What rights did she get under the Missouri law? This must be determined by our own statutes. They offered her the choice to “be endowed of the third part” thereof “to hold and enjoy during her natural life” not subject to debts or obligations of her husband (Sec. 318, R. S. 1929) ; or tо have (since there were no children) “one-half of the real . . . estate . . . absolutely, subject to the payment of the husband‘s debts.” [Secs. 325 and 327, R. S. 1929.] However, she had to make her choice of an absolute interest, subject to debts, if that was what she wanted, whether it be a child‘s part (if there arе children) or one-half (if no children), “by declaration, in writing, acknowledged before some officer authorized to take the acknowledgment of deeds . . . within twelve months after the first publication of notice of
Section 329 Revised Statutes 1929, requires the filing of the declaration to take an absolute interest in lieu of dower in the probate court and recorder‘s office in the cоunty “in which letters testamentary or of administration were granted.” This apparently is intended to apply to residents of this State and there does not seem to be any statute which specifically requires nonresident widows to file such a declaration of election in this State, unless it can be implied from general record or probate statutes. However, our statute does require that a widow must make and acknowledge such a written declaration. This is mandatory and a renunciation of a will is not such an election. [McLain v. Mercantile Trust Co., supra.] We do not need to decide here what filing in this State is required of a widow of a nonresident, because our conclusion is that the only declaration made for the widow in this case, while sufficient as a renunciation of the will, was not sufficient as an election to take an absolute interest subject to debts in lieu of dower. The form used in this case follows the form for renunciation and election set out in the Illinois statutes (Sec. 13, Chap. 41). The Illinois stat-
Under our law, as we have pointed out, language showing that the widow desires an absolute interest is not only important “in determining to what estate she became entitled” but she cannot take such an interest without clearly declaring her choice of it, because such a declaration is a mandatory requirement. When we undertake to find if the intention of Mary M. Livingston can, outside of her renunciation of the will “be otherwise ascertained,” we find no exрression thereof which was made as required by our statute. It seems to be the policy of the Illinois law to give an absolute interest rather than dower unless dower is claimed, but our law gives dower instead of an absolute interest unless an absolute interest is claimed. It follows that Mary M. Livingston “never had аn estate of inheritance in the land” in this State, and therefore her collateral heirs, plaintiffs herein, “have no interest whatever therein.” [Wallace v. Crank, supra].
The judgment is reversed and the cause remanded with directions to dismiss plaintiffs’ petition. Ferguson and Bradley, CC., concur.
PER CURIAM:—The foregoing opinion by Hyde, C., is adopted as the opinion of the court. All the judges concur.