96 So. 694 | Miss. | 1923
delivered the opinion of the court.
J. K. Stewart, a resident of Chickasaw county, made a will in 1918 by which he made certain devises of five dollars each to certain of his children, and'the remainder of his estate to be equally divided between his three sons L. B. Stewart, Kelly Stewart, and Stanton Stewart. The will further provided:
“In the event of my marriage after this date, then my wife, if living, at the time of my demise, shall share alike in the residue of my estate with L. B. Stewart, Kelly Stewart, and Stanton Stewart.”
The testator was then unmarried but afterwards intermarried with appellant and was living with her at the time of his death in September, 1921. He was at the time of his death the owner of about two hundred and fifty acres of land worth several hundred -dollars and a small amount of personal property and about one thousand dollars due him in money now in the hands of
It was held in the cases of McReary v. Robinson, 12 Smedes & M. 318, and Turner v. Turner, 30 Miss. 428, that the above-named statute applied to cases of testacy and intestacy alike, and that the widow was entitled to a year’s allowance, regardless of whether the testator had a will or not. \
In the case of McGaughey v. Eades, 78 Miss. 853, 29 So. 516, it was held by this court that where a will bequeathed a wife one thousand dollars “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,” and '“he expressly stipulated in his will that said sum of one thousand dollars should be in lieu of all exemptions and other demands or interest in his estate, both real and personal,” and the widow tpok this provision upon his death and did not renounce the will, that she was not entitled to the one year’s'support. The court so held upon the theory that it was inconsistent to aóeept this provision of the will, made expressly
In the case of Whitehead v. Kirk, 106 Miss. 706, 64 So. 658, the court reannounced the doctrine of the cases of McReary v. Robinson and Turner v. Turner, supra, saying that the court’s announcement of these cases was a sound construction of the statute, and also saying that possibly the cáse of McGaughey v. Eades, supra, was intended to overrule McReary v. Robinson and Turner v. Turner, supra, but that the court thought “that the rule of construction announced in the last-named cases is the better rule, and in our opinion the reasoning correctly interprets the legislative intention,” thereby readopting these cases as the law of the state, if indeed it was affected by the case of McGaughey v. Eades, supra.
We do not understand that the case of McGaughey v. Eades, supra, is in conflict with the ruling of the other three cases above cited; The decision in McGaughey v. Eades is distinguished by the language of the will expressly providing that the bequest was in lieu of all other claims, and, that being true, of course, it was inconsistent to accept the benefit under the will and thereafter claim a provision in absolute contradiction of the terms of the will.
In the will before us in the present case there is nothing in the terms of the will inconsistent with thé doctrine announced in McReary v. Robinson, Turner v. Turner and Whiteheard v. Kirk, supra.
The appellee contends that the case of Williams v. Williams, 111 Miss. 129, 71 So. 300, the latest case upon the subject, supports the decree of the chancellor. We do not think this case is in point, as there was an express renunciation of the will in that case, and the opinion therein rendered does not directly or by implication overrule the case of Whitehead v. Kirk, supra.
We think the chancellor was in error in dismissing the petition, and the judgment will be reversed, and the
Reversed and remanded.
