Crawford v. Bloss' Estate

• Decision Date: 14 September 1897
• Citation: 72 N.W. 148,114 Mich. 204
• Parties: CRAWFORD v. BLOSS' ESTATE.
• Court: Michigan Supreme Court

72 N.W. 148

114 Mich. 204

CRAWFORD v. BLOSS' ESTATE.

Supreme Court of Michigan

September 14, 1897

Error to circuit court, Macomb county. James B. Eldredge, Judge.

Judicial settlement of the accounts of Jacob Crawford, executor of the estate of Lafurgey Bloss, deceased. From a judgment of the circuit court affirming an order of the probate court assigning the residue of the estate, and reversing the order of such court as to the disallowance of an item in the executor's account, Martha Crawford appeals. Affirmed.

Byron R. Erskine, for appellant.

Crocker & Knight, for appellee.

LONG, C.J.

Lafurgey Bloss died July 1, 1894, leaving a widow, daughter, and grandson. By his last will the widow was given a life estate in a five-acre homestead and a life use of one-third of all other realty and personalty. The will was duly probated, and within one year therefrom the widow elected to take her share of the personalty under the statute, waiving the provisions of the will as to that, and by the same instrument she affirmed the disposition of the realty by the will. On a hearing in the probate, as well as in the circuit court on appeal, she was sustained in her contention that she might make such an election. From this decision the daughter, Martha Crawford, appeals.

Sections 5750, 5751, How. Ann. St., provide for an election by the widow within one year to take her dower in the lands under the statute, and that, unless such election is made within one year after the death of the husband, she shall be deemed to have elected to take under the will. This statute has been in force for many years in this state. In 1881 the legislature passed an act entitled "An act to restrict the disposition of personal property by last will." Act No. 18, Pub. Acts 1881. Section 1 of that act provides "First. If the testator shall leave surviving him a wife, the testamentary disposition shall be subject to the election of such wife to take any interest that may be given to her by the testator in his last will; or, in lieu thereof to take the sum or share that would have passed to her under the statute of distributions had the testator died intestate until the sum shall amount to five thousand dollars, and of the residue of the estate one-half the sum or share that would have passed to her under the statute of distributions had the testator died intestate; and in case no provision be made for her in said will, she shall be entitled to the election aforesaid. Second. If, by any will, any special devise or bequest is made to the wife in lieu of any particular thing or any particular interest to which the wife might be entitled in case of intestacy, the election by the wife to take the special devise or bequest or the other particular thing or interest, in lieu of which it is given shall not deprive the party electing, or any other person, of the right to leave the testamentary disposition of property in all other respects unaffected and unimpaired, and to have the benefit of any other provisions therein the same as he or she would have had if this act had not been passed."

Mr Justice Campbell, in Re Smith, 60 Mich. 141, 27 N.W. 80, speaking of the amendatory statute of 1881, said: "By the old law, if a widow elected to claim her dower, she lost, usually, all claim to personalty, as well as realty, devised or bequeathed. She was not entitled to waive any provision of the will, without waiving all, unless the will so provided. This statute came in to enlarge her rights, by enabling her to elect as to personalty, as well as realty. But there is nothing in this statute which gives her the right to claim a bequest of personalty, and at the same time claim an interest as by intestacy. If she claims a bequest of personalty, the will stands as to the other bequests. But in the present case the only bequest made to her is the one in lieu of dower; and while she could take or not take that, at her pleasure, she cannot take that bequest, and claim anything else which is not bequeathed. ...