84 Kan. 782 | Kan. | 1911
The opinion of the court was delivered by
The argument in support of the chief assignment of error depends upon a view of the evidence which the trial court refused to adopt. The controlling testimony was given orally and was conflicting. The trier of the facts has found the facts. The findings are abundantly sustained by the evidence. For nearly fifty years the court has uniformly held in such cases that the findings are conclusive on appeal. The rule will be adhered to in this case.
It is said that the plaintiff’s written consent to her husband’s will was not binding upon her because of her Ignorance of her husband’s financial status. The point is an afterthought. It was not made in the petition and the twenty-second finding that at the time, the plaintiff consented to the will she had a general idea of her husband’s financial condition was gratuitous. The evidence upon which this finding is based came from
It is not necessary that the decision be rested upon the ground just considered. The court found as a fact an election by conduct to take under the will. The evidence was amply sufficient to warrant the'finding. (Reville v. Dubach, 60 Kan. 572; Cook v. Lawson, 63 Kan. 854.) In the case of Reville v. Dubach, supra, the syllabus reads as follows:
“Although the statute provides for a formal election*790 by the widow whether she will take under the will of her deceased husband, in lieu of the share which the law gives her, an election may be made by acts in pcCis, and hence the record is not the only proof of such election.
“The proof of an implied election must be clear and satisfactory, but a deliberate and intelligent choice is deemed to be as binding as though it were formally made.
“If, after ascertaining her rights and learning what she could take under the will as well as by the law, she deliberately proceeds as though an election had been made, accepts the benefits of the will and actually takes under it, she will be concluded, and will not be heard to say that no election has been made.” (60 Kan. 572, syl. ¶¶ 1-3.)
The syllabus of the decision in the case of Sill v. Sill, 31 Kan. 248, reads as follows:
“In order that the acts of the widow shall be regarded as equivalent to an election to take under the will, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended by her acts to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be-an election.” (Syl. ¶ 5.)
Every requirement of this rule is fully met by the findings of fact.
Other matters discussed in the briefs are not of sufficient moment to require the publication of an opinion respecting them.
The judgment of the district court is affirmed.