In re the Estate of Smith

60 Mich. 136 | Mich. | 1886

Campbell, C. J.

William Smith made a will in 1871, and died in June, 1883, leaving a widow, without children, and several children by a former wife. His last marriage was in 1864. Just before, and without, so far as appears, the knowledge of his intended wife, he conveyed his farm to his children, but the deed, if previously delivered, was kept off from the record until about five weeks before his death, and he and his wife occupied it during the nearly twenty years of their married life, as a homestead.

By his will he left his wife $1,000, in lion of dower, and the residue to his children. It does not appear that he had any other land. After the estate was ready for distribution, there remained, beyond this -legacy and statutory allowances, $1,788. Of this the widow claimed and was allowed one-half, as in case of intestacy. John L. Smith appealed to the Wayne circuit, where her claim was disallowed, and she now comes into this Court to be restored to the probate allowance.

Iler claim is under sections 5824 and 5825 of Howell’s Statutes, being the amendatory act of 1S81, entitled “An act to restrict the disposition of personal property by last will.” That statute enacts in substance, that all testamentary disposals of personalty shall be subject to the limitations :

1. That if a testator leaves a wife surviving, the testamentary disposition shall be subject to her election to take the interest given by will, or to take, as in case of intestacy, up to $5,000, and half of an intestate share beyond that. In case there is no provision for her in the will, she is to have the same election.

2. If any special devise or bequest is made to her in lieu of any particular thing or particular interest to which she would be entitled in case of intestacy, her election to take either this special testamentary provision, or the thing in lieu of wlTich it is given, “shall not deprive the party electing, or any other person, of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired; and to have the benefit of any other provisions therein, the same as he or she would have had if this act had not been passed.”

This will disposed of personal property, and, so far as appears, of nothing else except by the residuary bequests to the children. The widow’s bequest was. very clearly a bequest of personalty. By the old law, if a widow elected to claim her dower, she lost, usually, all claim to personalty as well as realty devised or bequeathed. She was not entitled to -waive any provision of the will without waiving all, unless the will itself so provided. This statute came in to enlarge her rights by enabling her to elect as to personalty as well as realty. But there is nothing in this statute which gives her the right to claim a bequest of personalty, and, at the same time, claim an interest as by intestacy. If she claims a bequest of personalty, the will stands as to the other bequests. By the second clause of the statute it is provided that where she has an election between taking a specific thing and a bequest in lieu of it, such election shall not affect any other testamentary provision in favor of such party, or of any other person. But in the present case the only bequest made to her is the one in lieu of dower, and while she could take or not take that at her pleasure, she cannot take that bequest and claim anything else which is not bequeathed. The other testamentary clauses, which the statute says shall be left unaffected, are the residuary bequests to the children.

As the land conveyed in 1864, if that conveyance is valid, formed no part of her husband’s estate, the question whether the legacy in lieu of dower would affect her rights, if she had any, to complain of the secret conveyance, is not before us. The only question for us to decide is whether she can claim the legacy and, at the same time, share in personalty as by intestacy. In our opinion she cannot. As the question is a new one, and seems to have been dealt with on both sides on what we deem to be a misapprehension of the statute, we shall, in affirming the judgment of the circuit court, leave the parties to pay their own costs.

The other Justices concurred.