McGaughey v. Eades

78 Miss. 853 | Miss. | 1901

Terral, J.,

delivered the opinion of the court.

Joseph D. Eades, of Leake county, made his last will and testament, by which he disposed of all his property. By the fifth item of said will he bequeathed to his wife, Callie, $1,000, to be paid to her at once upon his death, and, if the payment of said sum was delayed, it was to draw ten per centum interest from his death. He expressly stipulated in his will that said sum of $1,000 should be in lieu of all exemptions and other demands or interest in his estate, both real and personal. In the eighth item of his will he directed the legacy given to his wife to be paid before all other legacies, and in the twelfth item of his will he declared that it had been his aim to make his wife equal to any one of the other heirs and no more.

The appraisers of the estate allowed and set apart to the widow $150 in money, for one year’s provisions and necessary wearing apparel. The other legatees objected to said $150 allowance, which objection the court overruled, and approved and confirmed said appraisement and. allowance. It cannot be doubted but that the testator intended the legacy of $1,000 to be in lieu of any allowance for a year’s support, as well as for all other claims, and the question is whether a testator, by any provision in his will, can debar the widow of the year’s allowance provided for by the statute. The question is not without difficulty, and each view is not wanting in authority for support. Our statute upon wills and testaments authorizes every person sui juris to devise all his estate, real or personal, of any description whatever, and such will, unless broken by the heirs or renounced by the widow, governs the entire disposition of his estate.

In Turner v. Turner, 30 Miss., 428, it was held that the widow of a person who has made a last will and testament, by which he disposes of the property exempted by law from exeration, is not entitled to the same unless she renounces the will. And we think that her right to an allowance for a year’s provision can stand upon no higher ground than her right to the exempt property. We see nothing in the statute giving the year’s provision that seeks to secure that at all events, and against the will of the husband making a different disposition of it. Where she gets nothing by the will, or where the devise to her is unsatisfactory, and she renounces the will, she takes a child’s part of his estate, but where she takes a legacy under the will, and the will is expressly made in lieu of the allowance of one year’s provisions and all exemptions, she may not, without renouncing the will, take the legacy and the year’s provision and other exemptions. This rule results from the doctrine of election, which involves the notion that no man can claim inconsistent rights with regard to the same subject, and that any one who asserts an interest under an instrument is bound to give full effect to that instrument; he cannot both accept and reject it, or avail himself of its benefits as to a part and defeat its provisions as to other parts. 1 Pomeroy’s Eq. Jur., sec. 395.

To permit the widow, to take the legacy under the will of her husband and at the same time to receive the benefit of an allowance of one year’s provision, directly against the will of the testator, would be to allow her to affirm the will as to the $1,-000 legacy, and repudiate it as to the year’s provision. This may not be done. Shafer v. Shafer's Ex., 129 Ind. Rep., 394.

In American Law of Administration, by Woerner, sec. 82, it is said: “It is held in some states that where there is a will making provision for the widow, she is not entitled to the allowance unless she renounce the provisions of the will, ’ ’ and for this doctrine, among other cases, he cites Turner v. Turner, 30 Miss., supra. We think the reasoning of the case, logically followed, supports the doctrine it is cited to maintain.

Reversed and remanded.