Freeman v. Freeman

Citation57 S.E. 292,61 W.Va. 682
CourtSupreme Court of West Virginia
Decision Date27 April 1907
PartiesFREEMAN v. FREEMAN et al.
1. Wills—Who May Contest—Widow.

The widow of a person who died, leaving no children, may contest the will of her deceased husband.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 550-553.]

2. Same.

The decision in McMechen v. McMechen, 17 W. Va. 683. 41 Am. Rep. 682, denying the widow the right to contest her husband's will, in a case in which the husband was survived by children as well as a widow, does not apply when the testator left no children, since the reason of the rule enunciated in that case fails under the altered circumstances.

3. Same—Election by Widow.

Section 11 of chapter 78, Code 1899 (section 3177, Code 1906). providing that, if a widow renounce her husband's will, or if no provision has been made for her in his will, she shall have such share of her husband's real and personal estate as she would have had if he had died intestate, leaving children, presupposes a valid will which has passed through, and survived, the ordeals of probate and contest. (Syllabus by the Court.)

Error to Circuit Court, Mercer County.

Action by Lizzie Freeman against Ernest W. Freeman and others. Judgment for defendants, and plaintiff brings error. Reversed and remanded.

R. C. & Bernard McClaugherty, Williams & Williams, and Chilton, MacCorkle & Chilton, for plaintiff in error.

Holt & Duncan, Hale & Pendleton, and J. M. McGrath, for defendants in error.

POFFENBARGER, J. R. E. Freeman, who is said to have possessed a large personal estate, died in June, 1905, leaving no children, but leaving surviving him a widow, Lizzie Freeman. He had made a will on the 24th day of November, 1903, by which he had disposed of his entire estate to persons other than his wife. The will having been admitted to probate by the clerk of the county court of Mercer county, the widow appeared, made objection to the confirmation of the probate thereof, and asked to be permitted to contest the will. The court fixed a day for the trial of the contest. On the day so fixed the proponents of the will appeared and moved to dismiss her objection, which motion the court sustained, and confirmed the probate made in the office by the clerk. Before the dismissal of her objection and contest, but after the argument on the motion had commenced, she moved the court for leave to amend the order previously entered, so as to show that she had appeared as widow and sole distributee, and to prove that her husband had died leaving no children; but the court refused to hear the testimony and overruled her motion. Thereupon she moved the court to appoint a curator to take charge of the estate pending the contest, which motion was also overruled, and she put upon the record notice of her inten tion to appeal to the circuit court. In the

circuit court on appeal, she renewed her motion for the appointment of a curator, which motion was denied, and the proponents of the will moved the dismissal of the appeal, on the ground that she could not contest the will of her husband, which motion was sustained, and the appeal dismissed. From this order she has appealed to this court, and the sole question presented is whether she had the right to contest the will of her husband under the circumstances. If so, the appointment of the curator follows as a matter of course.

The appellees rely upon the decision of this court in McMechen v. McMechen 17 W. Va. 683, 41 Am. Rep. 682, holding as follows: "A widow has no right to contest her husband's will, for she is not bound by it, but may renounce it;" and upon McMasters v. Blair, 29 Pa. 298, which this court followed in adopting the conclusion above quoted. McMechen v. McMechen proceeds upon the theory that, by reason of her right to renounce, a widow is not prejudiced by the will of her deceased husband, although it may take from her what the law allows her out of the estate. The statute enables her to renounce the provisions made for her in the will and thereby acquire one-third of the personal estate and her dower in the real estate; and, if no provision has been made for her, she obtains this without renunciation. The statutory provision reads as follows: "When any provision' for a wife is made in the husband's will, she may, within one year from the time of the admission of the will to probate, renounce such provision. Such renunciation shall be made either in person before the county court by which the will is admitted to record, or by a writing recorded In the office of the clerk of said court, upon such acknowledgment or proof as would authorize a writing to be admitted to record under chapter seventy-three of this Code. If such renunciation be made, or If no provision be made for her in the will, she shall have such share of her husband's real and personal estate as she would have had if he had died intestate, leaving children; otherwise she shall have no more thereof than is given her by the will. A husband may, in like manner, renounce a provision made for him in the will of his wife, and in such case, or if no provision for him be made in the will, he shall have such share of his wife's estate, real and personal, as he would have had if she had died intestate leaving children; otherwise, he shall have no more thereof than is given him by the will." Code 1906, § 3177. In McMechen v. McMechen, renunciation would have given the widow exactly the same interest that she would have acquired by successfully contesting the will. In a practical sense, therefore, the contest would have been useless. It would have been a laborious and expensive method of acquiring what she could havegotten by merely filing in the clerk's office of the county court a writing by which she renounced the provision made for her. Whether the decision, based upon this practical view of her situation, is reconcilable with legal principles, we are not called upon to determine,...

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2 cases
  • Senk v. Mork, 78
    • United States
    • Maryland Court of Appeals
    • March 4, 1957
    ...116, 98 N.E.2d 232 (on motion for reargument); Flynn v. McDermott, 183 N.Y. 62, 75 N.E. 931, 2 L.R.A.,N.S., 959; Freeman v. Freeman, 61 W.Va. 682, 57 S.E. 292, 11 Ann.Cas. 1013; and Dexter v. Codman, 148 Mass. 421, 19 N.E. 517. In this State the precise point has not been decided, so far as......
  • Freeman v. Freeman
    • United States
    • West Virginia Supreme Court
    • November 19, 1912

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