In re Wilber

52 Wis. 295 | Wis. | 1881

Cassoday, J.

The facts in this case are similar to those in Wilber v. Wilber, infra. That concerned real estate; this, personal property. That was an action at law, and its determination depended upon the strict legal rights of the respective parties; this is in the nature of an equitable proceeding, and is to be determined by equitable rules. Brook v. Chappell, 34 Wis., 405; Appeal of Schœffner, 41 Wis., 260; Catlin v. Wheeler, 49 Wis., 507. The petitioner made her claim under subdivision 1, sec. 1, ch. 99, R. S. 1858, being the same as subdivision 1, sec. 3935, R. S. The clause preliminary to the subdivisions only maltes the section applicable to such personal property as is not lawfully disposed of by will.

By section 3, ch. 106, Laws of 1877, section 19, ch. 89, R. S. 1858, was so amended that in case of a jointure, devise or other provision being made in the will for the wife, if she elects, within one year after the death of the husband, to take the provision made for her by law, instead of such jointure, devise or other provision, then, upon filing such notice, she shall be entitled to the same dower and right of homestead as though he had died intestate, and shall, in addition thereto, be entitled to claim and receive the same share of his personal estate as though he had died intestate, subject to the proviso therein contained. That provision is found, in substance, in section 2172, R. S. Under these provisions of the statutes we are forced to hold that the widow was entitled to the allowance prayed for in the petition, and the testator was powerless to exclude her therefrom by the terms of his will. This view is certainly supported by Miller v. Stepper, 32 Mich., 194, where the statute was not as strong in favor of the widow as ours. But section 2, ch. 106, Laws of 1877, amending section 18, ch. 89, R. S. 1858 (section 2171, R. S.), expressly provided that such widow by sucb election should not be entitled to both tbe provisions made for her by law and also the provisions made for her by the will. In other words, if she insists upon her right to a share of the personal estate under the statute, she must account for and be charged with what she has received by the provisions made for her in the will; and, for that purpose, we must hold that the $500 mentioned in her deed of release, with the express reference to it in the will, must be construed as a provision made for her in the will. Being in a court of equity, she cannot object to her doing equity as a condition of the allowance of her claim.

By the. Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.