Joseph Nick, a resident of Iowa County, Iowa, died testate, September 2, 1920, leaving an estate of the value
For nearly half a century, plaintiff was the wife of the testator, who, with her help, had accumulated an estate of substantially $90,000, subject to merely nominal indebtedness; and upon his death, the widow became entitled by statute to one third thereof, which, with her legitimate allowances for exemptions and support, would aggregate at least $30,000. On the other hand, considering her age and short expectancy of life, the estate given her by the will was, at best, worth only a small fraction of that sum; and if her choice was to be governed by the motives which ordinarily affect human conduct, she would be expected to renounce the benefits of the will and take advantage of the statute. Out of deference to the fact that the average woman, when widowed, is ordinarily inexperienced in business, and is liable to be embarrassed between her sense of loyalty to the wishes of her deceased husband and her desire to deal fairly by her children, the law has allowed her six months in which to reflect and to inform herself as to her rights and decide between the alternatives with which she is confronted. Her election, when made and filed, is in no sense a contract, nor is the record of it in any sense an adjudication. It is, however, just what it is called, — an “election or choice” between the benefits offered by the will and those provided by the statute; and when fairly and intelligently made, and só acted upon by the parties in interest that it cannot be withdrawn without prejudice to others who have acquired intervening rights in reliance thereon, it becomes irrevocable. Where, however, the choice has been made improvidently, without due understand
“An affirmative election to accept the provisions of the will adds nothing to the force of the statute. Therefore, any act which will preclude the exercise of that privilege which is given expressly by the statute must be of such force and effect as to constitute an estoppel. Here, the act done is induced by the appellant; the doing of the act [the execution of a written election] does not mislead' anyone; no interests attach on the faith of the act; nothing is parted with by those who would receive benefits from the act; innocent parties are not made to suffer from the act; no advantage is received or retained by the widow as the result of the act. Essential elements of an estoppel are absent, as a question of pleading and as a question of evidence. * * * Where the elements of an estoppel are absent, and where it is evident that the election is not the result of a reasonable understanding of the effect of the act, and where the act is sought to be revoked within the statutory period'for the exercise of the election to take under the law, such revocation should be permitted.”
In the same opinion, the court further says that the rule
The same rule is affirmed in like terms by the Pennsylvania court in In re Woodbiorn’s Estate, supra, where the widow was permitted to withdraw her election, which had been made in writing, signed, sealed, and filed, and there was neither allegation nor proof that she had been intentionally deceived or misled.
So in the Macknet case, supra, where the election was made under the mistaken advice of counsel. The court there says:
“She had a right to know the probable consequences of her dissent, and if she was misled on that score, and discovered her error while yet there was time to retract the dissent, and made speedy application for leave to do so, she ought to be placed in statu quo, unless the situation has so changed since her election that it cannot be done without prejudice to the subsequently acquired rights of others. ’ ’
In practically all of the cited cases, the right of the widow to retract an election made under a material mistake or misunderstanding is strongly affirmed, subject only to the' condition that she act promptly within the statutory period allowed for an election, and before the acquirement of intervening rights by others who have acted in good faith, in reliance upon her election. This rule we have ourselves expressly approved in Wohlers v. Griesse, supra.
Coming back now to the record before us, the simple question is whether the wddow in this case has made a sufficient showing for relief, under the doctrine of the cited cases. Of this we think there can be no substantial doubt. In the first place, it is quite clear that she was induced to execute the written election by the insistence of her son Joseph, who was anxious to exclude the possibility that the Schuler children might, in the future, acquire an interest in the property through the mother, if she should exercise'her right to take under the statute. In this he was, to some extent, aided by the daughter Mary, who was the only member of the family then living at home with plaintiff. To this end, and within less than a month after the testator’s death, Joseph sought to commit the plaintiff to an
“Q. You gave her to understand that, if she decided to accept the statutory third as her right, the result would be the sale of the farm, didn’t you? A. Yes, sir. Q. And she told you she didn’t like to see the farm sold, and didn’t want it sold, didn’t she? A. She said, ‘I don’t want the farm sold.’ Q. Didn’t she tell you, in substance, rather than see her interest in that farm disposed of, she would sign the paper, if the result was going to be she Avould have a sale of her interest? A. Yes, sir.”
During this talk, according td plaintiff, her daughter Mary threatened to leave home, and further told her:
“If you don’t take under the will, we will sell the farm, and everything will be thrown out in the road.”
Mary, though in court, did not testify in denial of her mother’s version of the story. The result of the talk between the mother and her son and daughter was that, after the lawyer had been gone only about twenty minutes, he was recalled by
That under the circumstances, even as related by Joseph himself, this old' mother, burdened with the weight of years, called upon to take a step of such importance so soon after the death of her husband, and intensely anxious to deal fairly with all her children, should become “rattled and nervous,” and unfitted to act with the deliberation and judgment which ought to be exercised in such a transaction, is not at all strange. Of itself, this situation may well justify the court in allowing a withdrawal of the election, even without evidence affirmatively showing fraud or misrepresentation; but this record is not without showing of mistake and lack of intelligent understanding on the part ‘of the widow. The attorney who prepared the writ
In disposing of the case, it is but fair to say that nothing herein is intended as a reflection upon the good faith or professional conduct of appellees’ counsel in this matter. He appears to have treated the plaintiff with entire courtesy,' explaining to her the nature and extent of her right to choose between the benefits of the will and those secured to her by statute. But, granting all this, it is very clear that the election was procured under circumstances which call for equitable interference in the widow’s behalf. Counsel for appellees is mistaken in classing this case with those for canceling deeds or contracts duly executed. Says the Delaware court:
“The fundamental idea of an election is that of a designed choice of one thing rather than another, and the selection cannot be made satisfactorily when there is, at the time, a misconception of the rights between which the choice is made. This feature marks a line of distinction between mistakes in making elections from other mistakes; and with good reason a more liberal rule prevails in granting equitable relief from the latter than from the former.” In re McFarlin, 9 Del. Ch. 430 (75 Atl. 285).
See, also, 1 Pomeroy’s Equity Jurisprudence (3d Ed.), Section 512.
In Evans’ Appeal, 51 Conn. 435, the widow was allowed to retract her election because she had been incorrectly advised as to her rights.
In Dudley v. Pigg, 149 Ind. 363 (48 N. E. 642), the authorities are quite fully considered, and it is there held that the widow’s right to elect to take under the law within the time fixed
In this case, there is no evidence on which to base a claim or plea of estoppel. Plaintiff acted very promptly in renouncing the election, and in declaring her subsequent election to take under the statute. No person or party was thereby induced or led to take action in reliance upon such election. There are no intervening rights acquired by others which suffer prejudice thereby. The books disclose no authority or decision upon which this decree can stand. The decision in Ashlock v. Ashlock, 52 Iowa 319, on which appellees largely rely, is not in point. The sole proposition there determined was that a former decree entered by the court at the suit of the widow had the effect to adjudicate her acceptance of the terms of the will, and that, no appeal having been taken therefrom, she was bound by such former adjudication.
Some point is made by the appellees that plaintiff’s application for allowance for support money operates as a waiver of her right to take under the statute, and a confirmation of her election to take under the will. • Her right to the allowance was in no maimer dependent upon her choice between the benefits provided by the bill and those given by the statute (Hamilton v. Hamilton, 148 Iowa 127); and such being the case, her act in asking for and procuring the allowance operates neither as a waiver nor an estoppel to defeat her right to elect to take under the statute. It is said, however, that, in such application, she stated to the court that she had elected to take under the will', and that she ought not now to be heard to deny or withdraw the admission. As the fact whether she had or had not elected to take under the will was immaterial, it cannot be presumed that it influenced the action of the court in making the order, nor could its subsequent denial operate to prejudice the rights of the appellees. Moreover, the application was framed
In our judgment, the showing made quite clearly estab- ' lishes her right thereto. The decree appealed from is reversed, and cause will be remanded for the entering of a decree setting aside and vacating the entry of plaintiff’s election to take under the will of her husband, and confirming her right to her statutory share in his estate. — Reversed and remanded.