Bretz v. Matney

• Decision Date: 31 May 1875
• Citation: 60 Mo. 444
• Parties: JULIA A. BRETZ, Respondent, v. WILLIAM M. MATNEY, EXECUTOR OF JOHN BRETZ, DEC'D, for Appellant.
• Court: Missouri Supreme Court

60 Mo. 444

JULIA A. BRETZ, Respondent,

v.WILLIAM M. MATNEY, EXECUTOR OF JOHN BRETZ, DEC'D, for Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

B. R. Vineyard, with A. H. Vories, for Appellant.

I. The will required an election, and when the widow elected to take under the will it provided that the bequest should “be in lieu of her dower in the whole estate” of the deceased. (Pemberton vs. Pemberton, 29 Mo. 408; Brant's Will, 40 Mo., 277 (at bottom); 2 Sto. Eq. Jur., § 1075--1123 and cases cited; Wagn. Stat., 541, §§ 15, 16.)

II. The status of the rights of the widow under the will and in the estate of her deceased husband, was fixed when she elected to take under the will, and could not be changed by a subsequent renunciation of the provisions of the will.

There is no fraud or mistake set up or shown. She elected with full knowledge of the facts, and she is bound by that election. If she elected rashly, it was her fault, not that of the law. (Davis vs. Davis, 11 Ohio St., 386.) This case, decided in 1860, is directly in point. (Light vs. Light, 21 Penn. St., 407; Van Orden vs. Van Orden, 10 Johns., 30; Brant's Will, 40 Mo. 277.)

III. It is true that the widow, under the statute (Wagn. Stat., 541, § 16), might have withheld her election for any time short of a year after the probate of the will; but the statute did not design to give her the right of accepting and rejecting the provisions of the will as many times as she saw fit during that year. It was the intention of the legislature to give her ample time to ascertain the condition of the estate, and the nature of the bequest to her, before compelling her to decide whether she would choose the bequest or reject it; but when she once made her election, unless she was imposed upon or acted through mistake, it was designed that her election should be final. (Davis vs. Davis, 11 Ohio, 386; Light vs. Light, 21 Penn. St., 407; Van Orden vs. Van Orden, 10 Johns., 30.)

Tutt, with Loan, for Respondent.

I. John Bretz, by his will, could not nullify the provisions of the statute. The statute allowed her twelve months after the probate of the will, in which to renounce the provisions of the will in her behalf.

The law secured her this right of renunciation for twelve months after the probate of the will, and this right under the law, cannot be abridged by any conditions that her husband might insert in his will.

As a matter of law, she took her dower nnder her husband's will, unless she renounced the provisions made for her within one year. But if within one year she elected to renounce the provisions made for her, she was then entitled to her dower under the law. (Watson vs. Watson, 28 Mo., 300.)

II. There was no consideration for the acceptance obtained from her by Matney.

III. Nor is there sufficient to work an estoppel in pais. There is no evidence in the record to show that the estate of Bretz, or of any one interested in it, would be prejudiced by allowing Mrs. Bretz to disregard it. No burdens would be cast upon the estate or them, that were not imposed upon them before it was executed, and they have given nothing to be relieved of the burden.

To establish an estoppel in pais, there must be some act or admission inconsistent with the claim set up, action by the parties, upon such act or admission, and injury resulting therefrom if such act or admission be allowed to be disregarded.

These elements do not concur in this case. (See Taylor vs. Zepp, 14 Mo., 482; Newman vs. Hook, 37 Mo., 207.)NAPTON, Judge, delivered the opinion of the court.

This case involves the construction of the will of John Bretz, and of our statutes concerning Wills and Dower.

That portion of the will of Bretz concerning his widow is this: “It is my will that my wife, Julia Ann, may keep all that portion of the tract of land upon which I live, that lies east of the road running north through said tract, which will be about thirty-five acres, including all the buildings, so long as she remains my widow, or so long as she may live, but whenever she should marry again, or whenever she should die, then my executors shall take possession of it and sell it, as any other land. In addition to the thirty-five acres of land just mentioned, it is my will that she shall have $1,000, to be paid to her in three annual instalments. She is, however, to commit no waste upon the premises, and is to pay the taxes promptly that may be assessed against it. The use of the thirty-five acres of land and the $1,000, above mentioned, are to be in lieu of dower in my whole estate, which she is required to relinquish before she is authorized to keep the land above mentioned, as well as the one thousand dollars mentioned; but should she decline accepting the foregoing bequest or proposition, then, it is my will that she may select and take a child's part, which, however, is to be in lieu of dower as before mentioned. In either case, she shall be required to file her acceptance in the Probate Court within one year after my death, or before she can inherit anything.”

This will was probated 25th June, 1873; on the 23rd July, 1873, Julia A. Bretz filed the following writing:

“To the Hon. J. P. Pettigrew, Judge of the Probate Court of Buchanan county. You are hereby notified, that I hereby accept the bequest and legacy made to me by my late husband, John Bretz, in his last will and testament, filed for probate in your office, which said bequest and legacy embrace the use of the home place, of thirty-five acres, of said Bretz, during my natural life or widowhood, and a gift of $1,000, to be paid in three equal annual instalments, and in consideration of said bequest and legacy, I hereby accept...