Fairchild v. Marshall
| Citation | 42 Minn. 14 |
| Court | Supreme Court of Minnesota (US) |
| Decision Date | 06 November 1889 |
| Parties | JOSIAH FAIRCHILD and others <I>vs.</I> WILLIAM R. MARSHALL. |
James H. Foote, for appellant.
Williams & Goodenow, for respondents.
The respondents brought this action to compel the appellant to specifically perform his contract with them for the purchase of certain real estate. The defendant resisted, upon the ground that plaintiffs were unable to convey a good and marketable title to the property. In the year 1881, the late Cadwalader C. Washburn, then a married man, was the owner in fee of said premises. He then conveyed, by warranty deed with the usual covenants, — as was admitted upon the argument in this court, — to another person, from whom, through certain mesne conveyances, these plaintiffs obtained their title. Mrs. Washburn did not join in the deed, has never conveyed her interest in the premises, and is still living. She has been insane, without lucid interval, for more than 25 years. Mr. Washburn died, testate, in the month of May, 1882. Litigation over a certain provision made in his last will and testament in behalf and for the unfortunate wife followed, ending in a decision of the supreme court of Wisconsin, in which state Mr. Washburn resided in his life-time, wherein it was determined that the provision of the will before mentioned was intended by the testator to be in lieu of the widow's dower and her one-third interest in the personal estate; that the statute requiring a widow to elect under such circumstances applied to one insane; and that the election should not be made by her guardian, but by the court. The court thereupon elected, in behalf of said widow, to take under the will. Van Steenwyck v. Washburn, 59 Wis. 483, (17 N. W. Rep. 289.) Subsequently, in the course of an administration of the testator's estate in Minnesota, this court determined that the election aforesaid, made and declared in Wisconsin, was effectual everywhere as an election by the widow to take under the will, and precluded any different action in respect to lands in this state. Washburn v. Van Steenwyk, 32 Minn. 336, (20 N. W. Rep. 324.) Preceding the opinion of the court in that case will be found a history of the litigation referred to, and a statement of so much of the will as was pertinent thereto.
The first question raised by the appellant herein is, does the acceptance by the widow of the provision made for her in her husband's will bar her of such legal rights as are fixed by Gen. St. 1878, c. 46, § 3, in real estate sold and conveyed during coverture by the husband alone? Whether a person is required to elect between a provision in his favor in a will and a right independent of it depends wholly on the intention, expressed or implied, of the testator. If it be expressed in terms, or clearly appears from the entire will, that the testator intended a provision made by it in favor of a devisee or legatee to be in lieu of any other right or claim affecting the estate, the latter must elect which he will take; and if he accepts what the will provides, he is precluded from asserting such other right or claim. Otherwise he might accept the will so far as it benefited, and defeat it as to other provisions. This court decided, in Washburn v. Van Steenwyk, supra, as before stated, that a will such as that under consideration made a case for election on the part of the widow between the provision made by it in her favor and that which the law makes to a widow out of the estate of her deceased husband. That is to be taken as the settled law of this state.
The only question, save as hereinafter stated, left for this case by that decision is as to the extent to which she should be required to elect. Is she compelled to elect only as to rights given by law in the estate of which the husband died actually seised, or estates which he assumed to dispose of by the will, or must she go further, and elect as to similar statutory rights in real property conveyed by him in his lifetime, but the title to which his general estate must make good if the title prove defective? The question points out the answer. The reason why it was held to be contrary to the intention of the testator that the widow should have both the testamentary and the statutory or legal provisions in her favor was that the assertion of the latter by her would be hostile to and tend to defeat the general purpose of the will. This reason applies with as much force to rights to which the law entitles her in real estate which the husband had conveyed during coverture, with covenants and which the general estate left by him was bound by, as it does to such rights in estates of which he died seised. The assertion by the widow of the legal right, in the one case, would diminish the estate to be distributed under the will, and so tend to defeat its...
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