Dixon's Estate, In re

• Decision Date: 28 December 1954
• Docket Number: Nos. 2645,2646,s. 2645
• Citation: 73 Wyo. 236,50 A.L.R.2d 1240,278 P.2d 258
• Parties: , 50 A.L.R.2d 1240 In the Matter of the ESTATE of Alvy DIXON, Deceased (two cases). Rosemary DIXON, Widow of Alvy Dixon, Deceased, and Bryan White and Frances White, as Grantees of said Rosemary Dixon, Appellants, v. Lloyd E. DIXON, Edith A. Brokaw, Margaret A. LeBeau and Charlotte P. Rosenlieb, Heirs at Law of Alvy Dixon, Deceased, and Devisees and Legatees under the Last Will and Testament of Alvy Dixon, Deceased, Respondents, G. R. McConnell, Executor of the Last Will and Testament of Alvy Dixon, Deceased, Respondent. Lloyd E. DIXON, Edith A. Brokaw, Margaret A. LeBeau and Charlotte P. Rosenlieb, Heirs at Law of Alvy Dixon, Deceased, and Devisees and Legatees under the Last Will and Testament of Alvy Dixon, Deceased, Appellants, v. Rosemary DIXON, Widow of Alvy Dixon, Deceased, and Bryan White and Frances White, as Grantees of said Rosemary Dixon, Respondents, G. R. McConnell, Executor of the Last Will and Testament of Alvy Dixon, Deceased, Respondent.
• Court: Wyoming Supreme Court

Page 258

278 P.2d 258

73 Wyo. 236, 50 A.L.R.2d 1240

In the Matter of the ESTATE of Alvy DIXON, Deceased (two cases).

Rosemary DIXON, Widow of Alvy Dixon, Deceased, and Bryan White and Frances White, as Grantees of said Rosemary Dixon, Appellants, v. Lloyd E. DIXON, Edith A. Brokaw, Margaret A. LeBeau and Charlotte P. Rosenlieb, Heirs at Law of Alvy Dixon, Deceased, and Devisees and Legatees under the Last Will and Testament of Alvy Dixon, Deceased, Respondents, G. R. McConnell, Executor of the Last Will and Testament of Alvy Dixon, Deceased, Respondent.

Lloyd E. DIXON, Edith A. Brokaw, Margaret A. LeBeau and Charlotte P. Rosenlieb, Heirs at Law of Alvy Dixon, Deceased, and Devisees and Legatees under the Last Will and Testament of Alvy Dixon, Deceased, Appellants, v. Rosemary DIXON, Widow of Alvy Dixon, Deceased, and Bryan White and Frances White, as Grantees of said Rosemary Dixon, Respondents, G. R. McConnell, Executor of the Last Will and Testament of Alvy Dixon, Deceased, Respondent.

Nos. 2645, 2646.

Supreme Court of Wyoming.

Dec. 28, 1954.

Brimmer & Brimmer, Rawlins, Sullivan & Sullivan, Laramie, for appellants.

J. R. Armstrong, Rawlins, K. W. Keldsen, Rawlins, for respondents.

BLUME, Chief Justice.

This is an appeal from a decree of final distribution in the estate of Alvy Dixon, deceased. The appeal has been taken both on the part of the children of Alvy Dixon as well as by Rosemary Dixon, his widow, and Bryan White, a transferee of Rosemary Dixon, to part of the interest which the widow has in the estate. Alvy Dixon died on November 27, 1944. He left surviving him four children, namely, Edith Brokaw, Lloyd Dixon, Charlotte P. Rosenlieb and Margaret LeBeau. These children were children by his first wife. He also left surviving him Rosemary Dixon, who had been his second wife and she inherited an interest in the estate of Alvy Dixon pursuant to § 6-301, Wyoming Compiled Statutes 1945, which in substance provides that where a testator is survived by children of his first marriage and leaves a widow who had been his second wife, the widow takes one-fourth of the net estate. The statute is set out in the case of In re Dixon's Estate, 66 Wyo. 197, 207 P.2d 510, 512. The testator left a will in which he devised specific pieces of land to each of his children as well as a specific piece of land to his widow. The latter refused to take under the will pursuant to the statute above mentioned and the court held she was entitled to do so, inasmuch as the widow had not been left one-fourth of the net estate of the deceased. A partial distribution has heretofore been made in the estate of the deceased in that the specific pieces of land which were devised to each of the children of the testator were set off to them. The widow objected to this partial distribution contending that she had an interest in each and every piece of land which the testator left at the time of his death. We held in the case above mentioned that the testator was authorized to give and devise specific pieces of land to each of his children, provided that the balance of the estate was sufficient to leave the widow the one-fourth interest to which she was entitled under the statute.

The present case involves the question of final distribution of the estate pursuant to a petition on the part of the widow and her transferees filed in the court on April 8, 1952. A hearing on the final distribution was had and a decree was entered by the trial court on September 11, 1953. In that decree the court distributed to the widow in Item A a tract specifically devised to her by the testator in a will; in Item B the court distributed to her one-fourth interest in a tract belonging to the estate known as the Murray Land; in Item C the court distributed to her a one-fourth interest in the oil and gas lease and a one-fourth interest to all mineral rights owned by Alvy Dixon at the time of his death; in Item D the court distributed to her one-fourth interest in all personal property, accounts receivable, bonds, stocks, cash and so forth; in Item E the court distributed to her one-fourth of the net profit of the estate during the period of the administration; in Item F, a one-fourth interest in the net appraised value of the estate plus one-fourth of the net profits above mentioned, less Items A, B and C heretofore mentioned. It also distributed to her some household goods valued at $375 and a homestead right of $2,500 in cash. The balance of the property was distributed to the children of testator. The objections which were made to this final distribution will be discussed in detail.

1. It is contended by the children of the deceased that the widow was entitled to have distributed to her only cash instead of specific property. The rule contended for by counsel for the children is a part of the question as to what is the effect of the dissent of the widow from the will. That subject divides itself into two parts: (1) The effect upon the other legatees or devisees under the will, and (2) The effect upon the rights of the widow herself. We shall deal first with part one.

Counsel for the children cite us in the first place to 4 Page on Wills, § 1347, where the author stated: 'If a right is given in place of that which testator attempts to give to another, the doctrine of election applies; and the beneficiary can not claim the gift under the will, and at the same time, claim his property or interest therein against the will.' Counsel overlook the fact that here the author is dealing with the question as stated by him: 'Much more frequently testator attempts to dispose of property which belongs to another, or give property in which another has an interest, free from such interest.' (Italics supplied.) Take the case cited by the author under the first of these quotations, namely, First Nat. Bank & Trust Co. in Macon v. Roberts, 187 Ga. 472, 1 S.E.2d 12, 17. There the court said: 'The doctrine of election as applied to wills, * * *, against one claiming inconsistent benefits, arises when the testator 'has attempted to give property not his own, and has given a benefit to a person to whom that property belongs,' in which case 'the devisee or legatee shall elect either to take under or against the will.'' (Italics are the court's own.) The first part of the annotation in 5 A.L.R. 1628 and 99 A.L.R. 230 deals with the same subject. It is quite clear these authorities are not in point in view of the fact that the testator in this case did not attempt to dispose of any property except his own.

Counsel for the children also appeal to the rule that if the widow dissents, the property given to her by the will is sequestered to compensate those beneficiaries under the will who have been disappointed in their gifts because of the widow's election. The subject is dealt with in 57 Am.Jur. 1057, § 1552 and preceding sections; 2 Pomeroy's Equity Jurisprudence, 5th Ed., § 517 and subsequent sections; annotation in 99 A.L.R. 231 and subsequent pages. This rule applies, not to cut down the interest of the surviving spouse under the statute, but, in the main, to adjust the rights of the remaining legatees or devisees inter se, so as to carry out the provisions of the will as nearly as possible. It is applied most frequently when the surviving spouse has rejected the life estate, or has elected to take dower instead of accepting the provisions of the will. No case has been cited in which the rule is applicable in a case such as that before us. There is here no disappointed legatee or devisee who is entitled to make up any loss by reason of the election of the widow. If the widow's right under the statute is greater, as perhaps is true here to a slight extent, than that which she takes under the will, some one must make up the loss and that loss cannot be compensated considering the other legatees and advisees as a whole. Of course, if it should appear from the will that a gift to a particular legatee or devisee should be unimpaired by reason of the election of the widow to take her statutory share, such provision would be given effect by the court. 57 Am.Jur. § 1551, p. 1056. No specific mention of that matter appears in the will in question here and since the children of the testator have been given an equal part in three-fourths of the estate, aside from the lands specifically devised, it is clear that the loss occasioned by the widow's election must fall upon them equally. They cannot escape that loss. There is no room for compensation to them and an adjustment of property inter se does not arise in this case.

Nor is the question of renounced property of any importance here. True, as counsel say and as is universally held, when the widow renounces the property given her, she cannot take under the will. But that does not mean she renounced her interest in the property of the testator which is given her by the statute. On the contrary, she has an undivided one-fourth interest therein, the right hovering over all of the property until this one-fourth interest is properly assigned to her as we pointed out in In re Dixon's Estate, supra. The greatest objection herein appears to be that the widow was assigned, as part of the one-fourth interest, the land devised to her by the will. She at least did not renounce her one-fourth interest in that land, so that at least an assignment to her of that interest therein would not be improper. Was it improper to assign her all of it? So we come to the second part of the question above mentioned, namely, what are the rights of the widow when she dissents from the will?

It is contended as already stated that the widow should have been distributed cash and cash only. However if she can be said to have renounced anything at all, why can it not be said, as in a case such as before us, that she renounced her interest in the cash of the testator and personal property which could be turned into cash just as much as her interest in...