Compton v. Akers

• Decision Date: 10 July 1915
• Docket Number: 19,619
• Parties: L. D. COMPTON, Appellee, v. EVERETT AKERS et al., Appellants
• Court: Kansas Supreme Court

150 P. 219

96 Kan. 229

L. D. COMPTON, Appellee, v. EVERETT AKERS et al., Appellants

No. 19,619

Supreme Court of Kansas

July 10, 1915

Decided July, 1915.

Appeal from Sumner district court; CARROLL L. SWARTS, judge.

Ruling affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

DESCENTS AND DISTRIBUTIONS--Effect of Election by Widow to Take Under Will. A widow who elects to take under her husband's will thereby bars herself and her heirs from inheriting property of the husband undisposed of by the will.

W. W Schwinn, of Wellington, for the appellants.

W. T. McBride, and Harold W. Herrick, both of Wellington, for the appellee.

West J. Marshall, J. dissenting.

OPINION

WEST, J.:

James Pierce devised to his wife his quarter section of land for life and an undivided one-half at her death to his friend L. D. Compton. After his death and the death of his widow, who had elected to take under the will, Compton took possession of the entire quarter section, and by this suit attempted to quiet his title against the heirs of Mrs. Pierce on the theory that by her election she barred herself and her heirs from all interest in the land except her life estate. The appeal presents the one question whether or not, such election having been made, her heirs can inherit.

There is no dispute that under ordinary circumstances the election by the widow precludes her from all rights of inheritance under the law, and this is made plain by the statute of wills. (§ 42, Gen. Stat. 1909, § 9819.) But the real question concerns the effect of such election upon property not disposed of by will. The court below held that the widow's heirs could not inherit.

While the matter of election has been ruled on, the point now raised has not been previously presented in this state. ( Allen v. Hannum, 15 Kan. 625; Noecker v. Noecker, 66 Kan. 347, 71 P. 815; Moore v. Herd, 76 Kan. 826, 93 P. 157; Ashelford v. Chapman, 81 Kan. 312, 105 P. 534; Pittman v. Pittman, 81 Kan. 643, 107 P. 235; Martin v. Battey, 87 Kan. 582, 125 P. 88.)

Of the numerous cases cited and examined and others which have come to our notice, quite a number are governed by the provisions of statutes which make it a matter of merely giving effect to legislative direction, while others involve an election to take under the law and can not therefore furnish much light or assistance. Those most nearly parallel and applicable will be briefly noticed. Ragsdale et al. v. Parrish, 74 Ind. 191, involved an election by a widow to take under the will of her husband which gave her only a life estate in certain of his land, and it was claimed that this did not preclude her from inheriting other land not disposed of by the will, but it was held that the statutes governing the matter were such that when construed together they must be held to mean that when a substantial provision was made for the widow by the will she could not, in the absence of a plainly expressed intention to the contrary, take both under the will and under the statute, and the case was distinguished (p. 196) from Armstrong v. Berreman, 13 Ind. 422, to be noticed later. In Langley v. Mayhew et al., 107 Ind. 198, 6 N.E. 317, it was held that when a widow accepts the provision made by the will which declares that it shall be in lieu of all other interest she may have in the estate, and she gives a receipt expressly agreeing to take under the will in lieu of all other claims, she can not take under the statute. On rehearing the original opinion was adhered to (107 Ind. 204, 8 N.E. 157), the court stating that as then constituted it would not follow some of the decisions previously made, but was inclined to accept the rule laid down in Morrison v. Bowman, 29 Cal. 337. That rule is that "if the husband, by his will, undertakes to dispose of the wife's half of the common property, as well as his own, to her and others, and she elects to accept the benefits intended and provided for her by the will, she thereby becomes divested of her title in and to the undivided half of the common property, provided an assertion of her community right and interest would necessarily defeat the objects of the will." (Syl. P 3.) This is a well-considered opinion citing and relying largely upon Jarman, Story, and Kent, besides numerous early decisions discussed and followed. In Jackson's Appeal, 126 Pa. 105, 17 A. 535, the testator gave one-third of the estate to his wife, and gave certain other legacies to others, and died without issue, leaving property undisposed of. Shortly thereafter the widow died without having made an election. It was held that as she would be presumed to take under the will her administrator could claim only one-third of the entire estate and was not entitled to any part of that left undisposed of by the will. In Matter of Hodgman, 140 N.Y. 421, 35 N.E. 660, it was decided that:

"Where a testator bequeaths his widow a certain sum 'in full satisfaction and recompense of and for her dower or thirds' in his estate, and the widow accepts such bequest, she is estopped from claiming a share as distributee in certain legacies of the testator that had become lapsed." (35 N.E. 661, headnote, P 4.)

In Walker v. Upson, 74 Conn. 128, 49 A. 904, it was ruled that when a testator gives his wife one-half his estate, allowing her to select it as she may choose, and dies intestate as to the residue, her acceptance under the will precludes her from sharing in such residue. In Smith v. Perkins, 148 Ky. 387, 146 S.W. 758, it was held that a widow who received a provision made for her in her husband's will, and took no steps for more than a year to repudiate such provision and take dower, could not thereafter recover dower in lands as to which her husband died intestate, the statute requiring that such relinquishment given by the will must be made within twelve months, and the court said:

"'The mere fact that the amount devised to the widow is less than her dowable and distributable share would have been in her husband's estate can not alter the legal effect of her act in failing to renounce the provisions of the will.' (Bayes, &c. v. Howes, &c., 113 Ky. 465, 68 S.W. 449.)" (p. 391.)

In another part of the opinion it was said:

"It is wholly immaterial whether the will disposes of the entire estate of the husband or not, for, having made such provision for her as he desired her to have, if she is not satisfied with it, she must renounce it and take under the law. Failing to do this, she loses her rights." (p. 393.)

In Ellis v. Dumond, 259 Ill. 483, 102 N.E. 801, it was held that:

"Acceptance by the widow of the provisions made for her in the will bars her right to dower, not only in the estate disposed of by the will, but also in intestate property which the testator acquired after the will was made but did not dispose of." (Syl. P 1.)

There certain statutes referred to provided in substance that any provision in the will made for the wife should, unless otherwise therein expressed, bar the right of dower in the lands of the deceased, unless such provision should be renounced. In Malone adm'r. v. Majors, 8 Humph. (27 Tenn.) 577, the statute provided that unless the widow within six months declared her dissent from the provision made by the will, the will would be considered fully satisfactory, and it was decided that she could not thereafter claim any portion of the property as to which her husband died intestate. In Armstrong v. Berreman, 13 Ind. 422, the facts were that Armstrong died leaving his widow, Sarah, and no children, having made a will by which he bequeathed to his wife "all the rest of his estate, both real and personal, during her life, and to be disposed of by her at her pleasure." (p. 423.) He also appointed her his executrix. Sarah qualified and returned an inventory showing that the personal estate amounted to $ 7540, with practically no debts. In a short time she died intestate, and it appeared that certain real estate was left by the husband, and out of the controversy over the estate it became necessary to construe the following provision of the statute:

"If a husband or wife die intestate, leaving no child, and no father or mother, the whole of his or her property, real and personal, shall go to the survivor." (Syl.)

The court said:

"Suppose a man die, leaving no child, nor father or mother, but having made a will bequeathing a small portion of his estate to a friend, there being a large residuum undisposed of. Shall the surviving wife not take it under the provisions of the section quoted, because of the bequest? As before remarked, we think that, in such case, the surviving wife should be held entitled to the property, so far as it was not otherwise disposed of by a will." (p. 424.)

This was said to be in accordance with the spirit of the statute and the intention of the legislature, and it was suggested that in case of a person dying intestate, disposing of a small part of his property by will and leaving all the remainder undisposed of, it should descend to his children as property of the person dying intestate. The court took up then the question of escheat and said:

"But suppose a will be made in such case, disposing of a part only of the estate, where shall the remaining portion go? Will the state not be entitled to it for the support of schools, under this section, although the deceased did not literally die intestate? . . . We are of the opinion that the simple fact that Benjamin Armstrong made a will, is no reason why the provision first above quoted, should not apply in favor of his surviving widow. So far as the property was undisposed of by will, the deceased may be said to have died intestate." (p. 425.)

The court then discussed the matter of election, which was practically the same...