*1 ROBERTS, W. GEORGE In the Matter the Estate ROBERTS, LOHMAN LORETTO Respondent, Deceased. TRU HELEN ROBERTS ROBERTS H. FRANKLIN v. Appellants. AX, 9661. No. May 4, 1959. Dissenting Opinion April 29, 1959.
Decided U. S. 825. (2d) 338 Pac. 719.
MR. JUSTICE ADAIR dissented. Wuerthner, Falls, Murch, appel-
Wuerthner & W. Great for C. lant. Kuenning, Falls, respondent.
Hall, Alexander & Great for FALL, Judge: THE HONORABLE VICTOR H. District appeal are: The facts involved in George Roberts died testate on November W. He widow,
left surviving his Loretto Lohman Roberts. There were no children. The will probate. was offered for and admitted to question validity No whatever has been raised relative to the testamentary granted the will. Letters were to the' *2 widow, respondent herein, and her 4, coexecutor on December 1954. The inventory appraisement April 1955, filed 19, disclosed that the estate consisted wholly personal of property in $49,296.60, stocks, —cash the sum of bonds, notes and mort- gages, together personal property with other amounted $306,000. to a total in 18, 1955, value excess of On sup- June a plemental inventory appraisement listed, pur- “for tax poses real.property Cascade.County, only,” situate in Montana, $25,000. of the value of Total creditors’ claims filed amounted $1,500. to than Under less the terms of the will the testator legacies: $20,000 left two sum of one his brother, to Roberts; legacy Franklin H. sister, and a like to his Helen Truax. entire of Roberts The was left to residue. estate surviving widow, respondent herein. May- 1955, Lohman Roberts, surviving Loretto widow, On provisions 22-107 and sections R.C.M. pursuant'to question filed renunciation of her the will. No is raised right renounce, as her to nor as the sufficiency to to of the re- nunciation'filed to form'. 14, 1955,
On June Loretto Lohman Roberts filed her peti- heirship, resulting tion for pre- determination' after due below, sentation to court court’s decree dated Decem- 1955; ber 14,- and filed December she was entitled' n appeal whole the estate. This the law the is from judgment and decree. question presented 'is,' may The by sole a renouncing thereby benefits of will intestacy? a create an squarely has question The never been- before prior this court (cid:127) (cid:127) (cid:127) appeal. to his dispose right property will is a valuable by'the protected courtsj be will absént-certain wéll-défined 'capacity,
exceptions "presented as to none of'.which are here and re- Ordinarily a amount. subject as to to certain restrictions protected her surviving widow when is used a nunciation provisions in value the in real exceeds dower interest will. made for her under the herein, section applicable statute
The “renunciation” amendment, read as follows: prior R.C.M. in lands dower
“Every shall bar widow’s bequest or devise expressed in unless otherwise or her share estate will; take such devise she will but she elect whether of such devise will renounce the benefit bequest, or whether she her share bequest, in the and take her dower lands by the enact- amended personal estate.” This section was July 1955, to chapter 231, ment effective Laws read follows:
“Every bequest her her husband’s will devise or share in in his his bar dower lands and widow’s may elect will; but she expressed otherwise unless provisions for her in *3 will take under the whether she such benefit of or will renounce the deceased husband in the lands and her provisions her, and take her dower for statutes, as succession personal share in the (2/3) no not in excess of two-thirds if there had been but pay- personal, net real after of the husband’s claims, expenses of administration and ment creditors’ inheritance and and federal taxes, including state and all applicable is here and The 1955 not estate taxes.” amendment statutory in only might it aid con- is it to be considered struction. that under the provisions
It be noted of section 1947, supra, prior the amendment the law with R.C.M. concerned, re- provided, we in case of a widow’s are then “take her in the lands and nunciation she would dower ’’ Dower is defined her share estate. R.C.M. 22-101, is involved this is not appeal. applicable here, [*] “* her share no real prior not defined was to the enactment of estate” chapter 231, Laws of not we need define here for reasons that follow.
Onr statutes relating evidently adopted to dower were from California, relating not true of is those to dower. Cali- fornia comparable has no statutes to ours which are now found sections 22-101 and R.C.M. 1947. Our statutes on subject adopted were are found in the Laws Montana, Session, commencing page Ninth 63. on Section 1 thereof was an copy exact of section 1 of the statutes of Illi- nois on Scates, dower found in Treat and Blackwell Statutes of (IR. XXXIV). Rev. Stat. Chap appears It now with an amendment added to the codes Section Civil Codes of 1895 as section 22-101. 22-102 an copy
Section exact of section 3 of the Illinois statute. 22-103
Section is an exact copy of section 4 of the Illinois statutes.
Section 22-104 is an copy exact of section 5 of the Illonois statutes.
Section 22-105 an exact of section 6 of copy the Illinois statutes.
Section 22-107 its before amendment in 1955 an was exact copy of 10 of the except Illinois statute the Illi- nois statute on husband,” had the end the words “of her but the omission three from our change of those words statute did not meaning. its
Section 22-108 is identical section 11 of with the Illinois statute.
Section 22-109 is identical with section 15. - 22-110 is
Section identical with section- 16. Section of the Act of was identical section 17 with statute, of the Illinois has but since been dropped from our *4 statute, 11 of the and section Act of 1876 was identical with n statute, section 18 of the Illinois but has been dropped it too n ' from our statute. . apparent quite dower,
It is that with some .on our. statutes adopted from here,- were- slight modifications not material Illinois Supreme apodtion ..Court Illinois. Prior -their' widow, upon that the those here-held under facts identical with entitled to all of will, not her election to renounce the was statutory provisions of the testator under intestate. husband died giving her that when her McMurphy point that speaking court in Illinois on 1868, said: Boyles, v. 49 Ill. was decided which appellant hand, by for urged other is counsel “On the will, widow, is already stated, having that renounced she would entitled to the same share of ease, there in this have had there been no which received children, would be whole. were children or descendents of no assumption that, the widow’s theory proceeds upon This intestate, which will, the testator had become renunciation of the remains, notwith- in terms. The will simply contradiction favor, provisions its in her standing she chosen to decline has annihilated, the estate of hers can it be no act of Yet the 46th into an intestate estate. her husband be converted to all wills, under which this claim section of the statute of made, only intestate estates. applies personal property category.” case, then, This is not within its Illi consistently followed This has been construction 149 N.E. Kilgore Kilgore, 319 Ill. court. In v. nois acquired testate, he she no “When died the court said: * * the law of descent *. right in his estate under vested purport give to her the same give or did not [renunciation] in case he died intes- have received interest she would * ** tate. “ * * long This has held in line court of cases that provisions by the renounces the made for her where the widow law, husband and elects to take under the will of her deceased any part does not have the effect to render such renunciation husband estate.” Mc the deceased intestate of the estate of 110; Ledwith, 49 Ill. Marvin v. Boyles, Ill. Murphy v. 58 N.E. L.R.A. Qua Graham, 187 Ill. 144; Re v. *5 154
641; Balch, 506; 195 626, Laurence v. Ill. 63 N.E. Lewis v. Sedgwick, Dunshee, 223 251 213, 14; Ill. 79 N.E. Dunshee v. 405, 298, 188, 1100; Ill. 96 N.E. 104 N.E. Id., 263 Ill. Wakefield, 275, Wakefield 256 Ill. 100 Cas. 296, v. N.E. Ann. 1913E, 414; Mather, 141 284, Davis v. 309 Ill. N.E. 209. repeated court,
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One other should be noted. In appearing the annotations under each section of the codes inclusive, from 22-101 sections stated that section was first enacted in 1866 which before the decision was However, McMurphy chapter case. an examination of XXXVI provi- of the Laws of 1866 will disclose that all of its quite sions are different from the Illinois statutes than quite effect and of 22-101 course different from sections they adopted Congress by 22-110 as Act were 1876 after (Vol. Large, page 426), 1867 14 March U. S. Statutes at had nullity. declared the act of 1866 a comparable
The first time that Montana had statutes they what are now 22-101 22-110 1876 sections was in when adopted point adopting were from Illinois. Aside from placed upon by statute construction Illinois this court 373, 377, 748, 750, 72 Dahlman, Dahlman v. 28 Mont. Pac. indicated that it would same reach the conclusion when widow to renounce The court said: “This elects the will. her, heir, by her husband, estate falls to not as will of but right, regard her marital and without to the law virtue of heirs, relating rights to the or to will made the hus- ’ band. ’. given by The same construction has been other courts example, similar as for Kuhn Kunh, facts v. 125 Iowa N.W.151, 152. That court said: That when a widow only rénounces she .takes that amount of the estate she eh- '* * '* matter of contract titled to under “the Code as a right, (cid:127)and of inheritance.” and not Noble,
In. re. Estate 194 Iowa N.W.
513, 26: A.L.R. that court stated: intestate, question “If there be no the decedent had died can (cid:127)
that, 636.32], the under section 3379 [I.C.A. ex would to the above debts and been entitled entire estate penses $7,500 but, to the amount of and one-half of excess it, we application view that statute no to the situation has *6 (cid:127) this case. The decedent did not die' intestate. The widow re share, nounced the take her distributive elected to has received from estate of testator her full share the entire the therein. This is all that she from can obtain the estate of s::=® decedent having who leaves a will decedent died testate, in estate, her share his in the event she renounced the will, is limited to one-third share therein. This share is to be enlarged only in single the instance a decedent dies where It application intestate. has no he to a situation where dies leaving a will.”
And 519, 337; Suiter, 522, see Suiter v. 323 Ill. 154 N.E. Stringer, 315, 447, 451; Johnson v. 158 Md. A. Nat. 148 Second Bank c. Bank, 215, Second Nat. 171 190 A. 111 A.L.R. Md. 711; Garth, (2d) 1023, Cochran v. 163 Tenn. 76 S.W. 1413; A.L.R. 4 Page, Wills, pages 12, 74; 19 Tenn. Law Rev. 941; 2 Cinn. Law Rev. 310. pointed
As in cited, out the respondent authorities the when provisions herein renounced the will, made for her under the thereby she did not automatically place position herself in a whereby she was entitled to inherit the statutes of succession. This is true pointed for the reasons out above and is dem- also onstrated wording' the of our succession, statute of the bene- provision fit of is sought by respondent. here the As noted above we here determine in what interest need.not is upon estate widow entitled renouncing Certainly the will. she is not entitled to the whole thereof. It noteworthy is the Illinois courts have limited her to a White Boyles, supra; McMurphy v.
one-third interest therein. These Will, 55 252. 413; Taylor’s Dance, v. 53 111. re adopted were rendered before we holding devisions so that the presume has been said we will statute and from what legislature adopt intended to such construction. now (chapter Laws
Our statute of succession “When here, provides: 91-403) pertinent R.C.M. * * hy disposing the estate any dies without person * * * in distributed will, is and must be it succeeded to * * * following manner: the estate issue, the whole of “2. If the leaves no decedent * * *” Empha- go husband or wife supplied. sis appeal, the deceased instant
It to be noted that is on the but disposing did not die without of his regard with contrary, very specific left instructions statute nothing his disposition contained Fur- expressed wishes. impossible to follow his which makes invited thermore, connection, particularly attention amendment, 22-107, supra, to section wording elects, then the widow provides that in the event which now share lands and her shall “take her dower she Emphasis sup- the succession statutes.” personal estate under *7 Legislature has now plied. clearly This demonstrates that our that a re- share with reference to the clarified the situation put question to rest the nouncing may have and has of a will. following the renunciation of the benefits that amount state, 1947, provides: In this R.C.M. expiration one at the are due and deliverable “Legacies * * year after the testator’s decease. upon provided legacies Interest is for 1947, reading part: “Legacies bear interest from R.C.M. * * *” they payable due the time when are and and of the district is judgment decree court reversed judgment instructions to enter and deter with decree legacy mining that Franklin H. Roberts entitled to his $20,000 the sum Truax is and that Helen Roberts entitled her legacy $20,000, payment in the sum of thereof and after widow; the residue of the estate be distributed to the at judgment provide said for interest the statu- decree to tory date legatees rate to the from November two payment. Appellants appeal. their costs on recover
On motion rehearing opinion promulgated for herein on reaching hereby opinion March and this withdrawn the same conclusion lieu thereof. is substantiated in rehearing
The motion for is denied. MR. CHIEF MR. HARRISON, JUSTICE JUSTICES ANGSTMAN, CASTLES and concur.
MR. JUSTICE ADAIR: (dissenting).
A careful respondent’s consideration of for rehear- petition ing, and of support opposition the briefs in of and to such petition, has majority opinion convinced me that the herein is contrary express statutes of Montana effect and con- trolling at the time of the husband’s death and that under the plain provisions governing statutes, of such peti- the widow’s rehearing tion for a should have been allowed and the cause should have been further judg- considered to the end that the given ment rendered in the district court District Judge C. B. respondent widow, Elwell in favor of the Loretto Roberts, Lohman against brother, deceased husband’s H. Roberts, sister, Franklin and the decedent’s Helen Robert Truax, be affirmed.
George W. Roberts and Loretto Lohman long- Roberts were time residents of the State of Montana. their marriage To party. state made itself a See Franklin Franklin, v. 40 Mont. page 350, 353, 26 L.R.A., Pac. N.S., marriage Their resulted in change in the status of each of parties. Under the law it change involved a in their re- spective rights, duties, obligations responsibilities.
Right to Make a Will. The power property by to leave
158 for its depends solely on tbe law from tbe law and derived nqutral right, power is nat a extent and enforcement. This property cre- right living to and control as is the men own longer act, the hand no' ated their labor. When brain and is then right right property natural ceases and the to control only given by the law. 178, page at Noyes’ Estate, 40 Mont.
In the case of In re Brantly 185, 1015, Mr. Justice page 105 Pac. Chief speaking for this court said: property dispostion of right testamentary
“The to make a by the right guaranteed it right; nor is is not an inherent entirely depends extent fundamental Its exercise to law. statute Legislature, expressed upon the of the consent right, subject. grant It or on the withhold enacted can subject to stich may its exercise and, grants it, it it make if supplied. pleases.” Emphasis it regulations requirements as Estate, 79 Mont. Mahaffay’s In the case of In re 879,'this 254 court said: Pac. testamentary disposition of right to make
“The Legislature of wholly province of the within one. 625, 16 S. Perkins, 163 U.S. Ct. v. state. In United States legal of no said: ‘We know 1073, 41 L. Ed. the court taking away limit from Legislature principle prevent to imposing such testamentary disposition or right of ing the pub may it upon deem conducive its exercise conditions deny right having power good.’ lic The state Estate, (In Noyes’ altogether re testamentary disposition may it grants it, it annex 1013), ‘when Mont. Pac. supposes required to be my which grant conditions 490, 12 Grrima, 8 How. Mager v. policy. interest its. Emphasis supplied. 1168.” L. Ed. legislature grant has enacted laws
The Montana husband wife the to make wills but to both the limitations grants are annexed certain and conditions. such provide: Revised Codes of Montana Every person Who make will. (6974) “91-101. *9 mind, last may, by over age eighteen years, the of of sound will, of all such dispose estate, personal, his real and of in disposed provided estate as not of will is succeeded to chargeable sections 91-401 both with being to in cases payment this debts, of all in provided decedent’s Title.” by. (6975) women, A
“91-102. Mamed wills married woman make a in manner with the same the same sole, not, effect if were shall except she that such will with- out the husband, operate deprive written consent of her to him of than esate, or of more two-thirds of her real more than two-thirds of her estate.”
Thus in legislature, enacting has Montana supra, granted to a wife the to make a but to grant it has annexed the limitation and condition that her “will not, shall husband, without the operate written consent of her deprive to him of than more her real or two-thirds of ’’ more than two-thirds of estate. Mahaf- See re fay’s supra. Estate,
Survivor’s Share. Section 91-403 of the Revised Codes Montana being one of the sections included “in sec- tions 91-401 91-422” to in 91-101, supra, referred to specifies portion surviving the share or husband or wife shall have and take the estate of spouse who died dis- without posing of the estate will. 91-403, supra,
Section pertinent so far as here reads: (7073) “91-403. Succession distribution to and estates. When any person having title not mar- to estate limited riage disposing by will, contract 'dies without of the estate distributed, to and succeeded must be unless ex- otherwise pressly provided by Montana, subject laws pay- ment debts, of his the following manner:
“1. If the decedent surviving leaves a husband or wife, only (1) one child, or lawful (1) issue of one child, equal to the surviving shares husband, or wife and child, or * * * issue of such child.
‘ n 2. If issue, estate of the the decedent leaves no the whole go If decedent surviving husband wife. leaves', go must issue, wife, no nor the estate husband nor shares, if either be equal father and mother in dead then other. father, husband, wife, If nor issue,
“3. be neither here of the mother, equal'shares then brothers and sisters to the decedent, brother or sis- any deceased and to the'-children of ter, by right representation.” husband, then, George Roberts, the
On W. November County, many years prior Blaine thereto, and for resident of wholly Montana, leaving county consisting died widow, Lor- his personal property. He left him marriage Lohman Roberts. There no issue of the retto were *10 any of hence lineal issue, and no descendent no descendents. with- In should die Widow’s Share. event the husband the and dis- or descendents of issue without out either issue the by express will, provisions under the posing of his estate then set in first sentence of Montana, of the law of forth the Codes, supra, “the whole section 91-403 of the subdivision of * * * wife.” go surviving of the the estate to 91-403, supra, the law, subdivision of Under husband’s portion her deceased estate widow’s share or of payment of the after the all to “the whole of estate” amounts expenses adminis- the costs and of the debts and decedent’s solely personal property the consists of tration. Where where the husband and are no issue and —where there were by will, says “the the estate the law disposing dies of wihout ** wife.” go to the estate shall the whole of por- widow’s or law, childless’ share Such, under the is the of will. tion the absence exer- However, George Will. W. did
The Husband’s Roberts right law, granted 91-101, supra, him the and cise the April 2, 1953, wherein, he make a which bears date of did will alia, he declared: inter my bequeath sister, to give
“Third: I Helen Roberts ($20,000.00). Traax, Twenty the sum Dollars Thousand H. brother, give bequeath my I Franklin “Fourth: to ($20,000.00). Roberts, Twenty sum Dollars the Thousand my property and All the rest and residue of “Fifth: '* * * be- give I devise and both real and my queath wife, Loretto Lohman Roberts.” probate admitted to December the above was County, Blaine Montana. in the district court for province legislature grant While it was within of the it right property yet testamentary disposition to make amend, abrogate deny right repeal, or withhold such or any change right limit manner or the exercise such legislature may long as action deem advisable so its upon is not the Con- imposed violative of the limitations stitution. Right Repudiate legislature
Widow’s Will. While right make Roberts, granted husband, George to the W. legislature granted sur- made, the will which he also to the viving wife, to decline Roberts, Loretto Lohman in the bequest provided to take for her devise refuse repudiate, forego all such benefits will and to renounce elect, as she under the lieu thereof to should receive any, demand, lands, if take and take her dower and to for provided share estate” “her as is the laws of this state. Right At the time
Widow’s to Elect and Renounce. Re- death occurred on November husband’s provided: of vised Codes Montana of then *11 may Every (5819) be- “22-107. Widow elect. devise or per- her dower lands or share quest shall bar a widow’s expressed will; she but sonal estate unless otherwise bequest, she will take such devise or or elect whether bequest, devise or she will the benefit of such whether renounce in the personal lands her share take her dower in the and (Emphasis supplied.) estate.” by 22-107, supra,
Thus its Mon- enactment of section did the legislature place right
tana on the husband a limitation share, bequeath to devise or to his lesser childless widow to portion or his than she be entitled amount of would 91-403, law, take under as it is set forth in subd. 2, supra. Montana above-quoted
The law of statute constituted the continuously July the first when Mon- day from July 1955, day tana Codes of 1895 took effect to first Chapter on which latter 231 of the Montana Session Laws date supra, 501, 502, amending be- pages 9, 1954, where- came was the law on November effective. Such passed, property on the husband died and the title his then written either under his the law as it was will in the Montana statutes. provisions Bight. supra,
Widow’s of section granted “elect whether * * * bequest” husband had she will take such as her the bene- provided in his “or she will renounce will whether * * * * * bequest fit take share of such testator, George "W. Roberts. estate” left statutory right under the law was is the widow’s Such then in force. comprising section 22- single sentence
Three times 107, supra, legislature use words “devise be- did the ’’ quest. testamentary disposition “A of land or A is: “devise” testament realty; property the last will and gift a of real Dictionary, Luxe 3rd edition De of the donor.” Black’s Law Roberts, left no land or testator, George "W. page 572. The dower widow’s could realty. property He left no to which attach. gift “A “Request”
Á is: legacy.” Dictionary, supra, page Law Per- Black’s property alone constituted the testator’s entire sonal “give bequeath” he declared did his sis- he ter, and his wife. his brother *12 at page Mont. Fratt’s Estate,
This in In re court defines “Bouvier 714 said: page 199 Pac. add testa- a last will property by ‘a real gift ‘devise’ as of property.’ gift will of ment,’ .‘bequest’ and as ‘a statutes, used Legislature, framing our “Undoubtedly the legal and tech- approved both these in their correct and words ’’ nical sense. of reads: Montana 22-108, Revised of Codes .Section aWhen (5820), “22-108. Renunciation and form of. she shall chapter, an woman is to. election entitled unless, year one devise,, within be. to have taken such deemed shall de- probate she of after the .authentication county proper.. court of liver or to district transmit renunciation, following form, may in the which be written ‘ county of-, A I, B, D, to-wit: late of widow of C quit hereby and all claims Montana, state of do renounce the last any bequest made me or devise the/benefit husband, has my will which and testament of said deceased (or otherwise, as proved according been exhibited and to law may my be), and I lieu thereof the ease do elect to take ’ - legal my husband, said which dower, or share of estate of in the office of the said letter of renunciation shall be filed complete court, operate as a clerk of district and the. may bar. which such afterwards set against' any claim thus made for her up any provision which have been dower; by thus re- any testator, lieu of the will thereupon aforesaid, nouncing all claims as such widow shall be', share in the lands entitled to dower her husband.” compliance 22-107
In strict with- the mandates sections May W. on supra, George Roberts, widow of filed and caused to be in the district delivered County, Montana, timely proper Blaine her court for and all claims to the benefit of written renunciation last any bequest or devise made to testa- renunciation, omitting ment husband, of her late title of the court and cause reads as follows: Will
“Widow’s Renunciation of The District of “To District Court of The Twelfth Judicial Montana, County The For Blaine: State of *13 “I, named Roberts, Loretto Lohman widow the above of decedent, Blaine, George Roberts, County of the W. late Montana, hereby quit State of all claims to do renounce and by Last any request the benefit of or made to me devise husband, Will has my and Testament of said deceased in proved according been exhibited and to law the above Court, my I elect take in lieu dower do thereof of any by in at the time property my real owned said husband my legal personal my esate of his death and share in the said husband. day March,
“Dated 15th Loretto Lohman Roberts.
“/s/ “Witness: H. C. Hall
“/s/ May 27, (Emphasis supplied.) “Filed: 1955.” her renuncia- By Renunciation. above-written Effect of tion, precise expressly in the childless widow did manner clearly provided 22-108, supra, in “re- sections 22-107 and any quit bequest all claims benefits of or nounce to the to” did devise made her her late husband’s will. Thus will. nothing childless widow elect to take whatever under the de- taking Instead of under the will the- childless widow any in my “I thereof dower clared: do elect to take lieu time of his property by my said husband at the real owned my said my legal death share Emphasis supplied. husband.” Montana of so far
Section Revised Codes of here, pertinent provides: (5813) “22-101 A shall Rower. be endowed of the part third of all lands whereof her husband was seized of an during marriage, time estate of inheritance at unless the same shall have been relinquished legal form. [*] * *” George W. time of his death The record shows at the any kind character real Roberts owned no nothing whatever takes surviving hence wife took and supra. statute, being the dower by the de- left Since in instant case entire estate widow, only, his personal property ceased husband consisted the husband’s death under the law as stood at the time of all on entitled to renounce November became and, upon benefits conferred her husband’s thereof, legal lieu share in the to elect to take “her “legal share” consists of estate” left the husband which Mon- portion quantity all that which the law of part, and have tana then declared a childless widow succeed no husband leaves distributed to her the event her deceased “legal That childless issue. so-called share” of widow, being estate,” “is “the whole of the the law declares * * * in fol- succeeded to and must be distributed * * * lowing manner: *14 “2. go If the decedent the leaves * # [*] no issue, wife” as the whole is provided of the estate for 2 of Montana subdivision of section Revised Codes of 1947. Assembly con- Thirty-fourth Legislative the State 3, 1955, than months after January being
vened on less two Roberts, the Senator Donovan testator, George death of the W. Glenn B. Larson of County Worden of Missoula and Senator for Mineral the senate a bill an County introduced in state entitled, Relating act “An Act Election and Amend- to Widows’ ing Section 22-107 Codes of Montana of 1947” of the Revised duly law, approved by the which thereafter was enacted into governor 231, Chapter is of the Montana and became and now 502 and effective from pages Session Laws of at 501 and day July and after the first of
Notwithstanding that this Act was not at the law the time death, of testator’s November and therefore has no- (cid:127) 166- majority case, yet
thing to do with the instant the whatever ' opinion follows quotes amendatory in full and such statute appli- not with the amendment observation “The might it in statu- only be considered as aid cable here is to tory construction.” (cid:127) (1955) Montana Thirty-fourth the
How act of day first Legislature, only State from after effective statutory July 1955, aid construc- of- be considered as an ’ origin- 22-107 tion.’ of section. of the' Bevised Codes of page ally as at seventy-nine years before section enacted Assembly Legislative of Laws the Ninth Territorial 234 of (1876) sixty years ago as section and reenacted Montana Civil Code of 1895? 72 and Wills, (3d ed.), pages
(cid:127)In 4 page on 73, it is said against is a renunciation to take the will
-“Election primarily for provisions' -are intended of the' will which , its deprives will of party who so elect's and behe'fit' o'f * * * purposes. such person effect as to such for against take- will rights person electing '"“The that, will It is said provisions. its cannot be cut' down are re though provisions which is' :to as the' be construed statute In the of a nounced, were not therein. absence included person renouncing1 person such rights .a fixing the though no will.” take as there were said to a, page subd. Wills, (cid:127)In'97 C.J.S. .notes 30-34, it is said: her as operates
“A renunciation husband’s will widow’s toto, the will vests in her dower renunciation statutory rights though, her husband’s concerned, intestate, he had died unless a statute far as she is .general provides. A terms have renunciation otherwise not though specify particular this effect even does *15 statute; the entitled under rights or to which the >> #*= # (3d ed.), 478, Wills, page 694, section Thompson In on
167 re- surviving spouse a 92, it is “Where 89 and said: *16 certainty. not lessen its right may be availed of and does “ * * * provision for ‘By provision whether the this it inde- little, accept her was much or she could will estate, her beyond real or at pendent of and her dower will, take in the provision election renounce the made ** * absolutely estate. share of the her distributive words, ease, provision In renounced the other in such if she placed in made, thereby made, provision if no was she was in had the hus- precisely been the attitude she would have This is illus- his estate. band died intestate as to added.) (Italics Nelson’s by many cases.’ trated decided 477.” supra, page 79 Va. Ex’r, Adm’r v. Kownslar’s Wills, 1288, page 134, *17 By what then does she the portion take the majority assigned provision has to her? What statute or gives our Constitution to this court or to of this court authority grant state the this majority opin- widow what the ion give here assumes to her? is no any provision
There nor is statute there of our Consti- granting tution given this majority widow share her opinion long herein after she renounced had the will. The share which she is entitled to is set out section 1947, being E.C.M. providing for distribution of disposed not statute, will. The require does intestacy not in order to entitle the widow to its benefits.
Unfortunately the size of consisting wholly of appears property, greatly have influenced ma- jority reaching its decision in this case wherein makes specific bequests. sacred the Such was not the intent of the Legislature in enacting the granting statutes the right to make- directly it is contrary legislative to the intent enacting the statutes. dower share widow’s was and is Legislature what sought protect granted shares —not For example, others. let us view the effect of majority as it decision would affect a lesser estate' In the instant case had the decedent left an estate of $40,000 but less, consist- ing solely personal property, then under the majority deci- been, sion the would penniless have left under the' will. All bequests would to the specific have been consumed majority say decedent’s she must brother and sister and the stay penniless though against even to take such she had elected Judge will. Elwell legislate. This court should not so District correctly rights under the adjudged and the widow allowed law itas stood That decision should time of his decision. be affirmed.
MOUNTAIN & TELEGRAPH COM STATES TELEPHONE PUB
PANY, Appellant, Corporation, Plaintiff v. MONTANA; Paul T. LIC COMMISSION OF SERVICE Ory Mem J. Armstrong, B. Smith, Middleton, Austin Constituting Hansen, C. J. Commission; bers of Said Secretary-Counsel H. Commission, and Forrest for Said Attorney Montana Anderson, State of General Attorney Commission, Defend for Said Ex-Officio Respondents, ants Mine, Mill and Smelter Workers
International Union Montana; the Butte Miners and its Local Unions 1; Mill and Smelterman’s No. Union, Local Falls Great Philipsburg 16; and Millworkers Local No. Union, Mine 24; No. Mill and Smeltermen’s Union, East Helena Local 72; Mill and Smelterman’s Local No. Union, Anaconda Lodge *18 Union, Local No. Miners Union, 117; Deer Local Union, Mine, Mill and Smelter-Workers’ 834; Melrose No. Jr., Individually; Cas- 904; Leaphart, No. C. W. Local Assembly County Falls, Labor of Great Trades and cade Union; Montana State Farmers’ Montana; Montana Respondents. C.I.O., Intervenors A.F.L. 9986. No. May 11, April 21, 1959. Decided Submitted (2d) 1044. 338 Pac. notes ** * apply. will, the usual laws of descent nounces a will entitles against the to take election of the widow "The as distribution of descent and her to benefits of statutes the fully no will.” though as there was (2d ed.), section 3 Probate In Bancroft’s Practice repudiates "Plainly, it is if the widow said: page the benefit she is entitled to probate, will and contests its ’’ been no will. completely if there had fully as as estate 1138, it is 1137 and C.J., Wills, pages In 69 said: operates "A will of her husband’s widow’s renunciation toto, in her her and vests as a renunciation of will though rights statutory dower in her husband’s ** * and a concerned, so far she is he died intestate though even general renunciation terms will have effect particular rights it specify does not ** *” under the statute widow is entitled is said: J., Wills, page Again in C. will "Generally, of her husband’s widow’s renunciation there claiming accepting any benefits precludes her from * * * in the will provisions made for her * * * of suc passing under the law lapse # *” * cession Hughson, Bank Roanoke v. Exchange First National 804, it said: (2d) 797, 803, 736, 745-747, Va. S.E. ‘ made provisions Statutory right widow renounce early Virginia existed for her in her will husband’s * * days. Colonial right to her share of her husband’s "The widow’s deceased absolute, paramount estate thus secured to her an statute is deny and certain which her husband not her. paramount right "This in the and as to share estate under year allowed' statute must be exercised within of the time probate of admission of to become That effective. limitation, however, merely restricts time which the
Notes
notes 97 C.J.S. section 41-48, is said: vesting interest; right “Time The wid- to increment. rights against will, confirming preexisting ow’s election immediately in her husband’s such estate in her vests * * vesting at the *. of the title date of the election result death with the relates back to the time of the testator’s of the that from that is the absolute owner moment the elector right immediate ultimately sum, although the distributable payment postponed is for the convenience of of such sum security potential rights of creditors for having prior others claims.” page 20 at Jur., Wills, In 57 note Am. personal right “is a it is that the a widow to elect said right.” distinguished from a majority opinion To illustrate error of the all that is necessary By an examination of the result it reaches. property except $40,000 will of the deceased all of his was to go against to his widow. The widow elected to take fully By reason and is bound her election. of such election provided it is R.C.M. the renuncia- operate complee against as a tion the widow “shall bar may up any provi- such widow afterwards set claim which her in the will made for may sion which have been thus * *” elected Having any testator, dower; in lieu of it. The take under against will, take widow cannot full share legal majority opinion says take her she not exactly what except $40,000 gives her all the estate re- she has she would Since have received the will. full nounced the valid and since the renunciation make the effect, legal right may force and this court what majority says she widow take what she has renounced? The property pursuant not take this to section B.C.M.