117 Ark. 142 | Ark. | 1915
(after stating the facts). It is contended for appellants that when appellee elected not to take under her 'husband’s will, that she was only entitled to dower in his estate, and not to any of the allowances made by statute to the widows of deceased persons. The statutes provide that if land be devised or a pecuniary or other provision made for a woman by will in lieu of dower in his estate, and not to any of the allowances made bequest or be endowed of the lands of her husband, and that if her 'husband shall devise any portion of his real estate to his wife, it shall be taken in lien of dower unless the will declares otherwise. Sections 2699, 2711, Kirby’s Digest.
There was no devise in this will to the wife of lands or bequest made expressly in lieu of dower, but only a direction that she should be provided for and maintained during her life, out of the proceeds of all the property •of the testator’s estate with the devise to her of the homestead for life. She had the election to accept the devise or bequest, whether made by the terms of the will in lieu of dower or not. Sections 2711 and 2712.
The provisions made for widows by sections 3, 72 and 74, are in addition to, and not in lieu of, dower. Ex parte Grooms, 102 Ark. 322; Stull v. Graham, 60 Ark. 461; Lambert v. Tucker, 83 Ark. 416.
The widow likewise is entitled to the homestead, not as dower in the estate of the decedent, but in addition thereto. Section 2706, Kirby’s Digest; Horton v. Hilliard, 58 Ark. 301; Ex parte Grooms, supra; 40 Cyc. 1968,
The statutes only provide that in oases where provision is made by will for the widow in lieu of dower, that she shall have her election to accept the same or be endowed of the lands and personal property of which her husband died seized.and there is no-prohibition or intimation thereof that .she shall not in case of such election to take .under' the daw and renunciation of the devise or bequest under the will, be entitled also to tbe provisions made for widows nnder said sections 3, 72 and 74 of tbe Digest, and tbe homestead law.
The devise herein was of the homestead to the widow for life and since the disposition was to her of the same estate or interest nnder the will as the law gives the widow therein, it relieves the court of the necessity of passing upon the question whether or not a husband can dispose of bis homestead by will so as to affect the rights of the widow thereto nnder the homestead law. When the widow elects not to take under the will, but nnder tbe law, without regard thereto, she takes as though no will had been executed, arid tbe husband bad died intestate, and is accordingly entitled to dower, homestead and the other allowances as provided in said sections of the Digest. Bell v. Altheimer, 99 Ark. 529. When there is sufficient money on hand as in this instance, there is no reason why the widow can not take the special allowances provided in sections 3 and 72 in money, instead of other personal property, as it will not he a taking from any one class of property in order to make np the deficiency created in another by reason of her selection therefrom. Ex parte Grooms, supra.
The judgment is affirmed.