50 Ky. 370 | Ky. Ct. App. | 1850
delivered the opinion of lhe Court.
On the 9th day of September, 1S49, John, Brand died, possessed a large estate, real, personal and mixed, of which he had made a disposition by a will, dated in December, 1849. By that will he devised to his wife, Mrs. Elizabeth Brand, for her life, and in lieu of dower, his residence in Lexington, with the appurtenances and the household and kitchen furniture, also, several lots, two cows, the choice of all his stock, and sundry slaves by name, &c. In addition to which, the Will contains the following clause:
“I also give to my wife the dividends- on my three hundred and fifty shares of Northern Bank stock during her life, with power to dispose of said stock at her death among my children or grand children, in such portions as she may please, provided her will is made three months before her death, and in case said dividends do not amount to two thousand dollars a year, the Executors are directed to make up the deficiency.”'
Mrs. Brand is also empowered at her death to divide the testator’s plate among his children orgrandchildren, as she pleases. The will then proceeds to distribute the remaining estate among the testator’s living children, George and Alexander Brand and Eliza McCallister, and the children of two deceased sons, William and John Brand, limiting the estate given to Mrs. McCailister, so as to revert on her death, in case she should leave no child, except her residence, which she is authorized to devise among testator’s descendants after
On the 12th of September, 1849, this will was admitted to probate in the Fayette County Court, after having been on the same morning, for the first time, opened and read in presence of George and Alexander Brand, and Mrs. McCallister, and immediately after-wards also read to Mrs. Brand, the testator’s widow, who, upon understanding the inequality of the provision made for Mrs. McCallister, immediately indicated a desire to make a will herself, and caused the gentleman who had opened her husband’s will, and was still in the house, to be brought info her room, where she forthwith caused to be written by him the following will:
“In the name op God, Amen :
“I, Elizabeth Brand, widow of John Brand, deceased, being of sound mind, and disposed to devise a portion of the estate which my husband has left me, do, for that purpose, make this, my last will and testament. My beloved daughter, Eliza McCallister, may, and probably will outlive me. She is and has been a most kind and affectionate daughter, and my husband has devised to my two living sons, and one of my deceased son’s children, the chief part of his estate, and it is my desire to give to my daughter the chief part of the Bank stock, which I am authorized to dispose of by the will of my husband; Ido therefore give and bequeath unto my daughter, Eliza McCallister, three hundred shares of stock in the Northern Bank of Kentucky, a part of that devised to me by my husband.
“In testimony, &c.”
This will was duly executed and attested by three subscribing wetnesses, and was made in the presence and with the concurrence of the two sons of the testa
“In the event of my dying within three months after the execution of the within will, there may be some difficulty as to my will standing good, to prevent which I do hereby, in the event of my dying within three months, renounce the provisions made for me in the will of my deceased husband, and claim that there shall be assigned to me out of my husband’s personal estate, the full value of the Bank stock devised to my daughter, Elizabeth H. McCallister, and I hereby give to my said daughter the value of the Bank stock in place of the Bank stock itself. If I live more than three months from the execution of my will, this provision is to have no effect.
“In testimony whereof. <fcc.”
This instrument signed and sealed by Mrs. Brand, was attested in her presence by two subscribing witnesses, and at the same time taken into the possession of the party interested in it. And the testatrix having died on the 5th day óf December, 1849, and within three months after the execution of her will, the said will and the foregoing instrument endorsed thereón, were on the day of December, 1849, offered in the
For the purpose of settling the questions growing out of these acts of Mrs. Brand, and the interests dependent upon them, an agreed case was made up between George and Alexander Brand, devisees and executors of John Brand of the first part, the trustees of the children of William Brand, deceased of the second part, and McCallister and wife, the former having administered on Mrs. Brand’s estate, of the third -part. And upon the facts agreed, and the evidence taken under the agreement, the Circuit Coui't was called on to decide, first, whether the will of Mrs. Brand was effectual to pass the Bank stock as therein devised; second, whether the instrument indorsed on the will was a valid renunciation of the provisions of John Brand’s will by his widow, so as to entitle her to her thirds in his personal estate to the value of the 300 shares of Bank stock, and whether on the whole case Mrs. McCallister is entitled to said shares or their value. To the facts already extracted from the agreed case and from the evidence, is to be added the agreed fact, that the real estate devised by John Brand to his wife was of less value than her dower, that the slaves so devised to her were of less value than her third of the slaves, and that the personal estate bequeathed to her for life Was, even if bequeathed to her absolutely, of less value than the third part of her husband’s personal estate after pay. ment of all charges, and that no dividends on the Bank stock were paid or became due-before her death. It is further stated in the agreed case that George and Alexander Brand make no resistance to the claim of Mrs. McCallister to the 300 shares, of Bank stock or its value, and agree that to the extent of their interest of two thirds, Mrs. Brand’s disposition of it shall have full effect.
The' Circuit Court decided that the will of Mrs; Brand was ineffectual as an execution of the power given to her, in consequence of her death within three months after its execution; and that the instrument! indorsed upon it was also ineffectual as h renunciation of the provisions of John Brand’s will in favor of his wife, and gave no right to Mrs. McCallister to have the Bank stock or its value.
In this Court, to which McCallister and wife have appealed, the question as to the efficacy of Mrs. Brand’s will has not been urged, and the whole case has been placed in argument upon the question of the validity and effect of the instrument indorsed on the will, and whether it is or is not to be regarded under the statute, as a renunciation.entitling the widow to her thirds, and enabling her to dispose of the same or any part there-. of.
It is indeed contended that,independently of the intrinsic character of the instrument, Mrs, Brand had by making the will in execution of the power given by her ° * 1 ° J husband, made a conclusive election to abide, by his will. .And this and other acts .are relied on as precluding her from renouncing the provision made for her and claiming against the will. But the will, besides , . , , . , , , , being made under circumstances which might authorize-a retraction, being in its own nature and'by law arevocable act, could not be conclusive, and it Was as much in her power to revoke it by renouncing the provision _ , . .... ‘ , , lor her under which it was made, as'by a new will or other instrument of revocation. And as to other facts relied on, viz: her residing in the mansion house and using whatever the executors left on the premises in the accustomed mannei’, we do not perceive that she-exercised or claimed any right inconsistent with the-right or fact of renunciation, or which- she might not have exercised if her husband had died intestate. Even the- two cows which are particularly referred to as being held under the will, were left for the use of her family by the executors, and there is not the slightest evidence
It is further contended that as it appears in this case that Mrs. Brand was not dissatisfied with her husband’s will on her own account, or on account of the provision made for herself, but only with the provision made for her daughter, her attempted renunciation is not within the letter or spirit of the statute, which authorizes a renunciation only in case the widow be dissatisfied with the provision made for her by her husband’s will. And it is argued that however formal orsufficient the renunciation might be in its own terms, it could not be effectual because it is not made in a case in which it is authorized by the statute. But although the statute (24th see. of the act of 1797, concerning wills, distributions, &c., Stat. Law 1544,) does enact “that when any widow shall be dissatisfied with thé provision’made for her by her husband’s will, she may, &c.,” declare that she will not take the provision made for her,' &e., we are''
If in order to authorize a renunciation which will entitle her to the provision made by law, the widow must be dissatisfied with the testamentary provision as a provision for herself personally, then if her husband gave her his whole estate for life, she could not renounce it and betake herself to the legal provision. And as she might unquestionably renounce such a pro-' vision, though satisfactory as a provision for herself personally during life, merely because it gave no power of
Now although Mrs. Brand was at all times entirely satisfied with the provision made, for her personal support and comfort during life, notwithstanding its being much smaller than she might have claimed under the law, and although she may have been satisfied with the power of disposition given to her, while she supposed the restriction placed upon it would not actually defeat it, yet it is certain that when she began to realize the probability that in consequence of the restriction the power would be wholly nugatory, and her attempt to exercise it, though made at the earliest opportunity wholly ineffectual, she became dissatisfied with the restriction. This is manifest not only from the instrument indorsed upon her will, but by other direct testimony taken in the case, from which it appears that although satisfied in other respects she was dissatisfied with this restriction, and that although she felt great repugnance at the idea of breaking her husband’s will as it is called, she was willing not only to execute the instrument referred to, but to do whatever else was necessary to effectuate the provision which she had attempted to make for her daughter under the power given to her by the will of her husband, and as she had some reason to suppose in accordance with what he himselfwould have done if he had had time to alter his will. As she might most unquestionably, if the will had given her no power of future disposition, have renounced its provisions for that single reason, so if the power actually given was inadequate to meet her wishes or so deemed by her, that was equally a proper and sufficient cause for renunciation. And as a renunciation on the ground that the will gave no such power, could not be invalidated by the fact however shown, that the power was desired in the particular case
If Mrs. Brand had been satisfied with the distribution of her husband’s property among his children', as made by his will, she might never have attempted to exercise the power given to her, or at any rate would not probably have exercised it as she attempted to do by her will. And it may be assumed that if she had been entirely satisfied that her will would take effect as an .execution of the power, she would not have attempted or desired to renounce the provision for her in her husband’s will. As it was to meet the apprehended event of her premature death within three months, whereby her will, as an execution of the power, might be defeated, that she was willing to renounce, the renunciation was made in. reference to that event, and was intended to be effectual or ineffectual as her death might happen before or after the expiration of the three months ; or, in other wofds, the renunciation was intended to be binding and operative, if by her death within three months, her will in execution of the power should become ineffectual, but the renunciation was to become inoperative if by her surviving the expiration
But it is contended that the renunciation, to be'effectual under the statute, and to secure to the widow the legal rights consequent -upon it, must be absolute and peremptory, and to take effect immediately, and not at a future time nor upon condition, and especially not upon the death of the widow-herself, either generally or within a specified period; and that wdren the provision to be renounced is for her life only, a renunciation to take effect at her death, would be an absurdity and a nullity, because there is then nothing to renounce, and no cause or ground for the provision which the law makes in case of renunciation; and furthermore, that as such renunciation does not take'effect until the death of the widow, no right consequent upon it can vest in-her during her life, and she has nothing which can be transmitted to her representatives.
The 24th section of the act of 1797: (Statute Law, 1544) to which this argument refers, enacts “that when any widow shall not be satisfied with the provision made for her by the will of her husband she may, within one year from the time of his death, before the Court
“And she shall moreover be entitled'to such share of his personal estate as if he had died intestate; but every .widow not making a declaration within the time-aforesaid, shall have no more of her husband’s slaves and personal estate than is given to her by his will.”
And by the 28th section of the same act: (Stat. Law, 660) the widow’s portion in the slaves is one-third for her life, and in the personalty one-third absolutely, in case the husband dies intestate, leaving children.
It has been decided by this Court in’the case of Cumming's Ex’r. vs Daniel and Wife: (9 Dana, 361) that under the joint operation of these two sections, a widow whose husband has devised away his whole estate without making any provision whatever for her, may, without renunciation, there being nothing to renounce, claim and recover the portion of his property to which she would be entitled in case of his intestacy, or of a provision for her which she renounces. In conformity with this decision, and with the rights of the wife under the ancient laws, which secure to her absolutely one-third of the personalty at the death of 'her husband ; and under the two sections above referred to, which, being contained in an act professing to reduce into one the several acts “concerning wills, the distribution of intestate’s estates, and the duties of executors and administrators,” is presumed to embody so much of their principles as remains in force, it may be assumed that as to. one-third of his slaves and personalty, the husband has not the absolute right of disposition by will, but must make a provision satisfactory to his wife; w7ho
As the statute did not intend to defeat or unnecessarily to tramel the widow’s right ¡of election between the will and the law, nor to prevent a fair and voluntary exercise of it, but intended only to place it under such restrictions as convenience and propriety required, there is no reason for carrying its provisions, by construction, beyond their plain and obvious meaning, or for requiring in the acts done under it a stricter compliance with its letter than in other cases. And as it implies the existence of two conflicting rights, without which there
The act of election or renunciation required by the statute is a declaration by the widow in open Court, or by deed duly attested that she will not take or accept the provision, &c., and renounce all benefit, &c. But although, many words are used in describing the declaration, the sense and effect of all are comprised in the words, “I do hereby renounce the provision made for me by my husband’s will;” which must be deemed equivalent to a declaration in the very words of the statute. Then as the declaration, whether made in Court or by deed, is to be the personal act óf the widow and must be made during her life, her death without having made it, puts an end to the right of election, and reduces her interest as widow to such right as grows out of the testamentary provision, though she should die at any point of time before the expiration of the year. But if the act to be done by her be done before her death may it not be proved and thus made fully effectual after her death? As to the renunciation in open Court, this question cannot arise, because the personal act of renunciation, must be at once stated on the record, and admits of no further proof. But the renunciation by' deed must be proved after it is made and is for this very purpose required to be attested. And even if it be true as contended, that it is of no effect until proved and noted or recorded in Court, it would be against reason and analogy to say 'that when she had done the only act required to be' done by her, and in the mode prescribed, the mere-fact of her death before it is or perhaps can be proved in Court, should prevent its being proved and
The proof and recording of the deed of renunciation not being acts of the maker of the deed nor within her control, need not take place during her life. If they must take place within the year from her husband’s death, that requisition was complied with In this case. And if the proof and recording be necessary'to give effect to the deed as a renunciation entitling the widow io her thirds, it follows that a deed of renunciation may depend for its effect as such upon a future event, viz: the proof and recording of it, which must take place after its execution, and which if it must take place within the year allowed for her election, may yet take place after her own death. Indeed, according to this construction of the statute, the renunciation by deed however absolute in its terms, must until recorded, be contingent as to its effect, since if not proved and recorded within the year it is no renunciation. What then if it be proved and recorded within the year, but after the death of the widow ? We answer that under anv admissible construction of the statute, the deed irr
But although we need not and do not decide that the statute requires the recording of the deed within the year, we assume that construction for further illustration of the subject. And supposing a deed of renunciation absolute in its own terms, but by construction of the statute dependent for its efficacy upon a future ■event, as the recording of the deed, we perceive at once the distinction between the act of renunciation so far as it is the act mental and physical of the renunciant, and any subsequent act or fact in which she need not participate, but on which the effect of her previous act may depend. What then if the deed instead of being
Now it is true, that the declaration or rennuciation as indicated by the statute, is absolute in its terms and refers to no.córidítion, but we do not admit, and suppose it -would not be contended that the very words of the statute without omission or addition, must be used, and that none other will suffice. We understand the time
For further illustration, let it be supposed that a husband, having a clear income of $30,000 a year, gives to his wife by his will $500 or $1000 a year, and that living in her accustomed manner she finds, at the end of eleven months, that she requires $5000 a year; she may undoubtedly renounce, although she may have received from the executor either the exact amount, or several times the amount which would be due under the will^ and as much perhaps as she would, upon reasonable estimate, be entitled to receive under the testamentary provision during her whole life. And so, whatever the pi'ovision may be, if she finds before a conclusive election, that it does not answer her purposes as well as the legal provision she may renounce. If the testamentary provision were, by its terms, subject to a reduction of one-half upon the happening of a certain event within the year, the widow might unquestionably renounce upon the happening of the contingency, and it would seem strange if she could not make a previous renunciation dependent on the same event.
It is argued, however, that if the renunciation may be conditional on the death of the widow, though within the year, it will be giving her an unfair advantage, by securing the legal provision if she should die within the time, and leaving her entitled to the testamentary provision if she should not so die. But what would be her condition if no such conditional renunciation were madel We have already seen that she might, in the very hour of her death, and on the last day of her privilege, renounce the testamentary provision for the single reason that she would not, as she believed, live to enjoy it, and therefore preferred the legal provision, which she might transmit to others. And if, from this motive, she was willing to make a conditional renunciation at an early period of the year, she would probably, if none such had been made, or if it had become void by her surviving the period referred to in it, re
We repeat, however, what has already been shown, that in this case the conditional renunciation was resort-, ed to, for the purpose of effectuating substantially a part of the testamentary provision, which was liable to be defeated from its form, by the casualty of Mrs. Brand’s death within a certain period, and that it was not intended to displace any specific devise, but to effect what was not even intended to form part of the residuum. That Mr. Brand intended and expected that his widow would execute the power of disposition given to her by his will, there is no reason to doubt. And as she attempted to exercise it at the earliest possible opportunity, so as to comply with the condition annexed, and only renounced the will in view of an event which would defeat the attempt, without any default on her part, and .in a manner which was probably not antici
These considerations, however, may not make this case an exception, and we have considered the objections to the renunciation on general grounds, arising under the statute, and applicable to all cases. But it is material to remark that the condition in this case being definite and distinct, and suceptible of easy and precise proof, and being moreover the same on which, by her husband’s will, the validity of her own was to be determined, is free from objection on the score of vagueness and uncertainty- And we again ask the question, why may not -a renunciation be made conditional, on the event of the widow’s death within a certain period, not exceeding her privilege, as well as upon any other event? It is said that in such a case there is no renunciation until her death; when she is unable to renounce, because she is dead, and when, for the same reason, no right consequent upon renunciation can vest in her, and none, therefore can be transmitted by her. But these objections apply with .'no more foi’ce to a case where the death of the renunciant forms the condition on which the renunciation is to be effectual, than to a case where it depends upon some other event, as the recording of the deed within three months, and the widoyv dies within the three months, and before the deed is recorded.
The condition being wholly independent of the act or consent, except as evidenced by the deed, her life or death, her ability or disability, to act or -consent or concur in the performance of the condition or in its-consequences are alike immaterial, unless by the terms of the-condition she is required to do some further act.
And as to the vesting and transmission of an interest
The renunciation of a testamentary provision by a widow is in effect and substantially a transfer or surrender of her right in it, to the heirs or devisees of her husband in consideration of which she becomes absolutely entitled to the legal provision from them. Why, then, may it not, like every other transfer of aright, be made on condition, and on the same condition, within the limitation prescribed by law as may be applicable to any other transfer of property or of a right? It is said that it must be by deed, and therefore cannot be upon a condition to be proved by parol. But a conveyance of land or the emancipation of a slave, unless by will, must be by deed, and, yet the deed ' or will may express a condition on which its effect as a conveyance of land or
The widow, it is true, does not deal personally with the heirs and devisees in making her renunciation, but she deals with the law, which assumes the control of ' their interests, and promises and gives to the widow a certain portion of them, in exchange for the pqrtion which she renounces. And as in case of an absolute renunciation there is an absolute exchange of these rights, so in case of a conditional renunciation there may be said to be a conditional exchange, to become absolute by the happening of the condition on which within the prescribed period her renunciation is to become absolute. We have already seen, that although when the testamentary provision is for life, .the death of
Under any view- of the subject, we do not admit that the deed of renunciation if conditional, must, be therefore regarded as revocable, or that it is not analogous to other deeds because it is unilateral and founded upon no consideration. The advantage expected from it is a consideration, and although in form unilateral, it operates to transfer a- right to others. It stands in these particulars on stronger ground than a voluntary deed of conditional emancipation, which when delivered is binding upon the grantor and in its nature irrevocable. The fact that in either case the maker of the deed might by subsequent acts create interests in others which might entitle them to question, or defeat the previous deed, does not if admitted, prove that the one any more than the other, is revocable or in any respect invalid. Each is by its execution and delivery, binding upon the maker according to its terms. And that is all that is necessary in-case of a deed of renunciation, whether it is by its terms absolute, or is to become absolute or void within the statutory period.
We aré of opinion therefore, upon the whole case,
Wherefore the decree is reversed, and the cause rcmanded'for a decree in conformity .with this opinion.