75 Minn. 53 | Minn. | 1898
Lead Opinion
We are again called upon to construe the provisions of G. S. 1894, § 4470. John P. Jones died testate, in 1889, the owner of a farm of 160 acres, of which 80 acres was his statutory homestead. His wife survived him, as did five children. The latter had attained their majority long prior to their father’s decease. The will was duly probated in 1890, and, in accordance with its terms, one-half of all of the decedent’s property was assigned and decreed unto the widow for the term of her natural life, with the remainder over to a son, Henry Jones; while the other half, except the sum of $600, reserved for certain specified legacies to the other children, was assigned and set over to said son Henry absolutely. Another' son (Hugh) was nominated in said will as executor, and he was duly appointed as such in 1890, and thereafter duly qualified, and has ever since been acting in that capacity.
The widow died in 1893. The estate has never been settled, and in 1894 the children, other than Henry, petitioned the probate court for the setting apart of the 80 acres, as the homestead of-the deceased, to the five children before mentioned, and for their use. The petition was granted in the probate court, but on appeal the order was reversed by the district court.
On the facts this case does not materially differ from that of Radl v. Radl, 72 Minn. 81, 75 N. W. 111, and is governed by it. In each case there was the last will and testament of a husband, in which
In the present case an undivided half of all property, less the amount of certain legacies, and including the homestead, was bequeathed and devised to the son Henry, while the other half was bequeathed and devised to the widow during her natural life, with remainder over to Henry. The widow did not assent in writing to 'the terms and conditions of the will, but it was probated February 1, 1890. She lived until January 31, 1893, or for more than two years after the expiration of the six-months period fixed in section 4472, within which she was required by a written instrument, filed in the probate court, to renounce and refuse to accept the provisions of the will, or be deemed to have elected to take thereunder, and in accordance with its terms and conditions. She failed to file the instrument, and upon her death all of the children save Henry filed the petition just mentioned, claiming that it should be granted because their mother never formally assented to the testamentary disposition of the estate made by her husband.
What was said in the opinion filed in the Radi case in reference to a proper construction of sections 4470-4472, is pertinent here, and need not be repeated; and, changing the language a trifle, so that it may fit slightly different facts, the remainder of that opinion is'in point. We have here the two essentials there mentioned: First, á testamentary disposition of the homestead; and, second, a failure on the part of the surviving wife to renounce, and a refusal
> We have the same argument here as in the Radi case, — that with this construction of the statute it is optional with the surviving husband or wife to deprive the children of their remainder in the homestead, — and the same reply can be made to it. The survivor has the power to deprive the children of this remainder by assenting to the will in writing, and it is of no importance to them how it is done, if this power absolutely exists. It is the act which affects them, and it is therefore immaterial whether it is performed by some affirmative action, like written assent, or is negatively brought about by reason of a failure to renounce and a refusal to accept under the will. The petitioners had no interest in the homestead to be set apart.
Order affirmed.
Concurrence Opinion
While I concur in the result arrived at, I do so upon an entirely different construction of G. S. 1894, § 4470, from that adopted in the opinion of the court. It will be observed that this case involves the interest of the children, and not of the widow, in the homestead of the testator. While I admit that, according to the grammatical relation to each other of the different provisions of this section, all that is contained in the first clause would seem to apply to all that follows in the four subdivisions, and therefore that the clause,
“Free from any testamentary devise or other disposition to which the surviving husband or wife shall not have assented in writing,”
Would be operative in favor of the children as well as the surviving spouse of the deceased, yet I think it is permissible to construe this clause as intended solely for the benefit and protection of the surviving spouse, and that, in view of the history and apparent pur
If this clause was intended for the benefit of the children of the deceased, it is rather remarkable that, although they may be of full age, they are given no voice in the matter. Their assent to the disposition of the homestead by the deceased is not required. Their interest is wholly dependent upon the will of the surviving spouse, who may be merely a stepparent; and this interest they may lose by the mere failure of the surviving spouse to make an election under section 4472. Again, if the children should have protection against the testamentary or other disposition of the homestead of a parent, we do not see why they should have been given it when there is a surviving parent or stepparent, and not when both are dead.
Again, the clause is not limited to a testamentary disposition, but to any other not assented to in writing by the surviving spouse, and, if the clause referred to is to be held operative at all in favor of children, it must be held to be equally so as to such “other disposition,” which is liable to lead to very embarrassing complications.
In the light of the pre-existing statutes on the subject, it seems evident to me that the authors of the probate code of 1889, in framing the section, had two objects in view, — one being to protect the statutory interest of a surviving spouse in the homestead of the deceased spouse against any disposition of it, testamentary or otherwise, to which the former had not assented in writing; and the other that the homestead should descend to the surviving spouse and children of the deceased, according to their respective interests, free from the debts of the deceased; that the first was designed for the benefit of the surviving spouse alone, while the latter was designed for the benefit of both the surviving spouse and children; and that the whole trouble has arisen from the fact that the commissioners who framed the code have attempted to effect both objects in a single section of the law of descents, which is very awkwardly and inaccurately constructed.
The construction of section 4470 which I suggest would render it entirely harmonious with the provisions of section 4472, and relieve the construction of both sections from difficulty; whereas,
Whether the interpretation given by Justice MITCHELL to G. S. 1894, § 4470, is the correct one, it is not necessary now to determine, but the question should be expressly reserved and not be made to appear to be foreclosed by the decision of this case. Conceding without deciding that the surviving husband or wife has for the benefit of the children a veto power on any testamentary disposition. of the homestead by the' other spouse, in this case the time to exercise that power has by the terms of section 4472, expired and the will must stand.
The question discussed by Judge Mitchell is altogether too complicated and too important to be disposed of without thorough consideration in a case in which it must be disposed of.
