11 Colo. 44 | Colo. | 1887
The matters in controversy in this case arise upon the construction of the statutes of this state relating to the disposing by will of the property of married men. Samuel M. Logan died in 1883, leaving him surviving, as his only heirs at law, Mary E. Logan, his widow, and three sons and one daughter. His estate consisted of four city lots in the city of Denver and some personal property. By his will he devised one lot to Mary J. Logan, the plaintiff in error, who was not an heir at law. A life estate in another lot was devised to Mary E. Logan, the widow, with remainder in certain proportions to his three sons. A third lot was devised to the three sons, in the same proportions, and the fourth in fee to his daughter, Isadore S. Logan. The widow renounced the provisions of the will in her behalf, and elected to take under the statute.
Our legislature has not always used these words in their strict legal sense, which fact of itself would authorize us to inquire in what sense they were employed in the present instance. Section 3481, General Statutes, empowers testators-to devise all their estate in “lands, tenements, hereditaments, annuities or rents, charged upon or issuing out of them, or goods and chattels and personal estate of every description whatsoever, by will or testament.” Section 2269 permits a married woman to make a will, but provides that “she shall not bequeath away from her husband more than one-half of her property, both personal and real, without his consent in writing.” It will be observed in the former section the word devise is applied to gifts of both-real and personal estate, and in the latter the word bequeath is used in the same sense. Mr. Dwarris lays down, as the rule for construing wills, that “the intention shall prevail,” and adds: “ Where the intention of the testator is clear and obvi
Were this a new question, as counsel suggest, we would not only deem the foregoing interpretation duly authorized by the reasons and considerations given, but consider it the duty of the court to accept it as the more reasonable construction. It is, however, not a new question. The same right to renounce the will and take under the provisions of the statute is afforded the widow under the statute of Illinois. Substantially the same provisions for equalizing gifts of real and personal estate exist there. They were literally identical with our section 3627, under consideration, from the year 1845 up to 1872. The only change made by the act of 1872 was to extend the provisions to a “surviving husband,” so that the section now reads: “In all cases where a widow or surviving husband shall renounce all benefit under the will, and the legacies and bequests therein contained,” etc. An. St. 111. § 79, p. 225. The section appearing in
It follows that one-half of lot 32, block 49, east division of the city of Denver, devised to the plaintiff in error, became the property of the widow upon the renunciation by her of the provisions of the will. Also that the county court committed no error, the estate being solvent, in decreeing that the deficit in the widow’s allowance should be paid out of the rents of the real estate, including said lot, and that one-half of the rents of said lot, in the hands of the administrator, belonged to the widow, as owner in fee of one-half of said lot.
The judgment is affirmed.
Affirmed.