96 Kan. 229 | Kan. | 1915
Lead Opinion
The opinion of the court was delivered by
James Pierce devised to his wife his quarter section of land for life and an undivided one-half at her death to his friend L. D. Compton. After his death and the death of his widow, who had elected to take under the will, Compton took possession of the entire quarter section, and by this suit attempted to quiet his title against the heirs of Mrs. Pierce on the theory that by her election she barred herself and her heirs from all interest in the land except her life estate. The appeal presents the one question whether or not, such election having been made, her heirs can inherit.
There is no dispute that under ordinary circumstances the election by the widow precludes her from all rights of inheritance under the law, and this is made plain by the statute of wills. (§ 42, Gen. Stat. 1909, § 9819.) But the real question concerns the effect of such election upon property not disposed of by will. The court below held that the widow’s heirs could not inherit.
While the matter of election has been ruled on, the point now raised has not been previously presented in this state. (Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 847, 71 Pac. 815; Moore v. Herd, 76 Kan. 826, 93 Pac. 157; Ashelford, v. Chapman, 81 Kan. 312, 105 Pac. 534; Pittman v. Pittman, 81 Kan. 643, 107 Pac. 235; Martin v. Battey, 87 Kan. 582, 125 Pac. 88.)
“Where a testator bequeaths his widow a certain sum ‘in full satisfaction and recompense of and for her dower or thirds’ in his estate, and the widow accepts such bequest, she is estopped from claiming a share as distributee in certain legacies of the testator that had become lapsed.” (35 N. E. 661, headnote, ¶4.)
In Walker v. Upson, 74 Conn. 128, 49 Atl. 904, it was ruled that when a testator gives his wife one-half his estate, allowing her to select it as she may choose, and dies intestate as to the residue, her acceptance under the will precludes her from sharing in such residue. In Smith v. Perkins, 148 Ky. 387, 146 S. W. 758, it was held that a widow who received a provision made for her in her husband’s will, and took no steps for more than a year to repudiate such provision and take dower, could not thereafter recover dower in lands as to. which her husband died intestate, the statute requiring that such relinquishment given by the will must be made within twelve months, and the court said:
“ ‘The mere fact that the amount devised to the widow is less than her dowable and distributable share would have been in her husband’s estate can not alter the legal effect of her act in failing to renounce the provisions of the will.’ (Bayes, &c. v. Howes, &c., 113 Ky. 465, 68 S. W. 449.)” (p. 391.)
In another part of the opinion it was said :•
“It is wholly immaterial whether the will disposes of the entire estate of the husband or not, for, having made such provision for her as he desired her to have, if she is not satisfied with it, she must renounce it and take under the law. Failing to do this, she loses her rights.” (p. 393.)
In Ellis v. Dumond, 259 Ill. 483, 102 N. E. 801, it was held that:
“Acceptance by the widow of the provisions made for her in the will bars her right to dower, not only in the estate disposed of by the will, but also in intestate property which the testator acquired after the will was made but did not dispose of.” (Syl. ¶ 1.)
There certain statutes referred to provided in substance
“If a husband or wife die intestate, leaving no child, and no father or mother, the whole of his or her property, real and personal, shall go to the survivor.” (Syl.)
The court said:
“Suppose a man die, leaving no child, nor father or mother, but having made a will bequeathing a small portion of his estate to a friend, there being a large residuum undisposed of. Shall the surviving wife not take it under the provisions of the section quoted, because of the bequest? As before remarked, we think that, in such case, the surviving wife should be held entitled to the property, so far as it was not otherwise disposed of by a will.” (p. 424.)
, This was said to be in accordance with the spirit of the statute and the intention of the legislature, and it was suggested that in case of a person dying intestate, disposing of a small part of his property by will and leaving all the remainder undisposed of, it should descend to his children as property of the person dying intestate. The court took up then the question of escheat and said:
“But suppose a will be made in such case, disposing of a part only of the estate, where shall the remaining portion go? Will the state not be entitled to it for the support of schools, under this section, although the*233 deceased did not literally die intestate? . . . We are of the opinion that the simple fact that Benjamin Armstrong made a will, is no reason why the provision first above quoted, should not apply in favor of his surviving- widow. So far as the property was undisposed of by will, the deceased may be said to have died intestate.” (p. 425.)
The court then discussed the matter of election, which was practically the same as now provided by section 9818 of our General Statutes of 1909, and held that it had no application to the case of the surviving wife, who claimed the whole estate as an heir, there being no others capable of inheriting before her, the result of the entire decision being that the widow inherited the property not disposed of by the will. In Lindsay et al. v. Lindsay et al., 47 Ind. 283, in considering a case of an election under the law the rule in Armstrong v. Berreman, 13 Ind. 422, was followed, and it was said:
“We are entirely satisfied with Armstrong v. Berreman, supra, and adhere to it. We think that section 26, supra, should be construed as if it provided that if a husband or wife die, leaving any estate undevised, and leaving no child, and no father or mother, the whole of such estate shall descend to the survivor.” (p. 285.)
In Dale, Adm’r de bonis non, etc., v. Bartley et al., 58 Ind. 101, considering a case of election to take under the law, the court cited (p. 105) with approval Armstrong v. Berreman and Lindsay et al. v. Lindsay et al. Collins v. Collins et al., 126 Ind. 559, 564, 25 N. E. 704, 28 N. E. 190, was a case in which a husband devised all his real estate to his wife for life and a certain portion of the fee to his son and daughter. The daughter and her only son died in the testator’s lifetime, and the son soon after the father. The widow elected to take under the will. It was held that the devise to the daughter lapsed, and as to the real estate devised to her the testator died intestate. It was held that as to the land devised to the daughter, the will being inoperative, the same was cast upon the heirs of the decedent, one-half going to the widow, the other half to the son; that her election to take under the will divested her of her one-third of the land devised to the daughter, but she still retained her interest in excess of the one-third which was the one-sixth. In Sutton v. Read, 176 Ill. 69, 51 N. E. 801, the will gave all the property to the wife to be accepted by her in lieu of dower during her natural life. There was no further disposition made of the real estate, and there was no residuary
It is laid down as the general rule that unless there is a manifest intention to the contrary the presumption is that the testator intended that his property should go in accordance with the laws of descents and distributions, and that heirs at law will not be disinherited by mere conjecture, but only by express words in the will or by necessary implication arising from them. (40 Cyc. 1412, 1498.) It is also stated that the widow is not put to her election between the provision for her under the will and her rights as heir to the property undisposed of unless “she is put to her election by statutes providing for such cases. But a widow taking under the will is barred of her dower in the property undisposed of, and the widow is not entitled to take both her dower interest and her interest as heir or distributee of property not disposed of.” (40 Cyc. 1970.) Gardener on Wills says:
“The prevailing rule is that, where a widow elects to take under the will, she thereby loses all interest in property in regard to which the testator died intestate, as well as in that upon which the will operates other than that given her in lieu of dower.” (p. 611.)
The will itself after giving the wife all of his personal property except one large bay horse, named Charley, provides as follows:
“2nd. I also give and bequeath unto her the rents, use occupancy and right of possession and complete control of the farm on which we now reside during her natural life time.
“3. I give and bequeath unto L. D. Compton of Wichita, Kan. who is now occupied as a Rock Island R. R. employee, the undivided one half interest in and of the north East quarter of section twenty-three (23) in township thirty one south range one east in Sumner County, Kansas. This bequest is to take effect and be in force at and after the death of*235 my wife, Elizabeth. I also give unto him my bay horse ‘Charley’ which he is to have possession of at the time of my death.
“4. I hereby appoint my wife Elizabeth Pierce Executrix of this my last will and request the Court granting letters hereon to not require of her any bond.”
There is certainly nothing in this will indicating any intention that any of the fee in the land should go to the wife, and it would seem that the testator forgot or neglected to provide where the fee in the remaining undivided half should go. It seems natural and proper that it should go to his heirs as if he had died intestate, which he did in respect to this portion of his property, but other instances might arise in which it would not seem so natural or so proper. If a husband owning large bodies of land should devise all but a small tract to his wife and leave that undisposed of it would seem perfectly fair and proper that her election to take under the will should bar her heirs from inheriting such small tract.
But it will be observed, as already suggested, that in the cases referred to it was usually a matter of statutory construction, and indeed “to this complexion must it come at last,” so that the real point before the court is whether the letter of the statute is controlling or whether it is to be construed to mean that the election bars the widow of her inheritance only as to property disposed of by the will. The statute of descents and distributions and the statute of wills have been in force since 1868 and no legislature has seen fit to modify or amend the requirements so far as they affect this case, but it is ordered that “words and phrases shall be construed according to the context and the approved usage of the language.” (Gen. Stat. 1909, § 9037, subdiv. 2.)-
Section 9818 of the General Statutes of 1909 provides that if any provision be made for a widow in the will of her husband the probate court shall after the probate of such will cite her to appear “and make her election,' whether she will accept such provision or take what she is entitled to under' the provisions of the law concerning descents and distributions, . . . but she shall not be entitled to both.” This would seem to make the statute of wills superior, in case of such election, to the statute of descents and distributions, and to preclude her from resorting to both.' Section 9819 requires the probate court to “explain to her the provisions of the will,
Language less free from ambiguity or more clearly understandable would be hard to find, and we see no sufficient ground for the .interpolation of an exception in case of property undisposed of by will.
The ruling of the trial court that the heirs of the widow can not inherit is affirmed.
Dissenting Opinion
(dissenting) : I do not concur in the conclusion reached by this court. Upon the widow’s election, the part of the estate undisposed of by will descends to the other heirs, if there are any, but if there are none, she takes the entire estate.