135 Minn. 357 | Minn. | 1917
Charles McAllister, a resident of Iowa, died July 20, 1913. At the time of his death he owned a quarter section of land in Marshall county, Minnesota, and property in Iowa. He left surviving his widow, Fannie S. McAllister, but no children or grandchildren. By his will, after giving to his wife the family residence in Spencer, Iowa, and his stock in a bank, he gave, devised and bequeathed the residue of his property, which included the land in Marshall county, to his wife and his son, Alexander McAllister, in equal portions. Alexander died before his father, as did the only son of Alexander. The testator then drew a line through the words which gave the son half of the residue, making the language read as a devise of the whole thereof to his wife and wrote on the margin of the instrument the words “canceled June 21, 1912, because Alexander McAllister, my son, died May 13, 1912, and his only surviving son May 26,1912.” The will was probated in Iowa and the court held that the attempted change and cancelation were ineffectual because not witnessed, and adjudged that one-half of the residuary estate should go to the widow, and one-half to the heirs of Alexander. The widow filed in the Iowa court her election to accept the provisions of the will. She has filed no renunciation in this state.
The son, Alexander, left surviving him one child, who died as stated
An exemplified copy of the will was admitted to probate in Marshall county. On a hearing of a petition of the executors for a distribution of the estate, the executors of the will and widow of the testator on the one hand, and Edward H. Mechling and John H. McAllister, on the other, contested the question whether the half of the residue originally devised to the son Alexander went to the widow, or to the named collateral heirs of the testator. The probate court gave the entire residue to the widow. On appeal to the district court the decree of the probate court was affirmed. The case comes to this court on the appeal of Mechling and McAllister from the judgment of the district court affirming that of the probate court.
It is admitted by all parties that the devise to Alexander McAllister lapsed, and that the testator died intestate as to the -land in Minnesota. It is further conceded that under the laws of this state the widow is the sole heir at law of her husband, and that had he left no will she would take the entire estate. The controversy is over the effect of her election in the Iowa court to accept the provisions of the will. The appellants contend that this election estops the widow from; taking any portion of her husband’s estate except that given her by the will, that she cannot take property as to which he died intestate, but that such property goes to those who would inherit it had the deceased left no widow. In support of this contention appellants cite many authorities from other states, all holding to the doctrine above stated. We cite here some of the cases referred to: Adams v. Adams, 5 Metc. (46 Mass.) 277; In re Benson, 96 N. Y. 499, 48 Am. Rep. 646; Leake v. Watson, 60 Conn. 498, 21 Atl. 1075; Ellis v. Dumond, 259 Ill. 483, 102 N. E. 801; Collins v. Collins, 126 Ind. 559, 25 N. E. 704, 28 N. E. 190; Severson v. Severson, 68 Iowa, 656, 27 N. W. 811; Compton v. Akers, 96 Kan. 229, 150 Pac. 219; Hardy v. Scales, 54 Wis. 452, 11 N. W. 590. Probably the basic reason
But it does not follow, simply because she was not required to file an election in this state, and has not done so, that the widow is not bound by her Iowa election. The doctrine of estoppel by election, as applied to cases where a testator makes a provision in his will for his spouse, in lieu of dower, is not a creature of statute. It is an equitable doctrine, founded upon equity principles. That it is not controlling on the question of estoppel that the widow was not required to file an election in this state and did not do so, is recognized by the quotation above made from the Owsley ease, where it is stated that the statutes of other states may be material upon a question of “common law estoppel.” A “common law”
This language is in complete accord with the authorities everywhere. We have before cited some of the cases that directly involved the right of a widow who had elected to accept the provisions of the will of her husband to take or share in property as to which, because of a lapsed legacy, he dies intestate. There is no conflict in the cases. They all hold that the widow is estopped by her election. Such a holding is unavoidable in the present case, unless we are bound to follow the case of Johnson v. Johnson, before cited. It is rather curious to note that this case was decided but a few months after Washburn v. Van Steenwyk, and is reported in
Our conclusion is that the election of Mrs. McAllister to accept the provisions made for her in the will of her husband, estops her from sharing in that part of his estate as to which, by reason of the lapsed devise, he died intestate. The-judgment appealed from is reversed, with directions to amend the conclusions of law and enter judgment in accord with this opinion.