Godman v. Converse

• Decision Date: 15 January 1895
• Parties: GODMAN ET AL. v. CONVERSE.
• Court: Nebraska Supreme Court

43 Neb. 463

61 N.W. 756

GODMAN ET AL.

v.CONVERSE.

Supreme Court of Nebraska.

Jan. 15, 1895.

Syllabus by the Court.

1. One who accepts benefits under a will must, as a rule, conform to all of its provisions, and renounce every right inconsistent therewith.

2. A testator, by will, left to his widow certain property, accompanied by the following condition: “The bequest to my wife, Mrs. M. F. C., is in lieu of all appropriations that the law would give her, except one year's support, which I desire she shall have.” The widow, on proof of the will, filed in the county court an instrument in writing, by which she, in express terms, consented to all of the provisions thereof. She was subsequently allowed support for one year. Held that, having elected to accept the provisions of the will, she is not entitled to a further allowance for her support pending the settlement of the estate.

3. The provision of the first subdivision of section 176, c. 23, Comp. St., for an allowance to the widow of certain property of her deceased husband, “as well when she receives the provision made for her in the will of her husband as when he dies intestate,” refers to the property mentioned in that subdivision only.

4. Godman v. Converse, 57 N. W. 394, 38 Neb. 657, overruled.

Appeal from district court, Lancaster county; Field, Judge.

On rehearing. Reversed. For former report, see 57 N. W. 394.Chas. O. Whedon, for appellants.

Marquett, Deweese & Hall, for appellee.

POST, J.

A former hearing of this cause resulted in a judgment affirming the order appealed from. See Godman v. Converse, 38 Neb. 657, 57 N. W. 394. A reconsideration was, however, deemed advisable, in view of the fact that the appellee's election to avail herself of the provision made for her by the will of her deceased husband has not received the attention which the importance of the subject suggests. As stated in the opinion heretofore filed, the deceased, by his last will, among other bequests, left to the appellee, his widow, his library, jewels, furniture, and household goods of every description, one buggy and harness, five cows, five horses, and $6,000 in money, besides the use, during her lifetime, of certain real estate in Lancaster county. The eighth paragraph of the will contains the following provision: “The bequest to my wife, Mrs. M. F. Converse, is in lieu of all appropriations that the law would give her, except one year's support, which I desire she shall have.” On the day set for the proof of the will, the following record, among others, was made by the county court:

“Whereupon, Margaret F. Converse, widow of said Joel N. Converse, deceased, filed the following acceptance, to wit:

‘In County Court within and for Lancaster County. In the Matter of the Last Will and Testament of Joel N. Converse, Deceased. Now comes Margaret F. Converse, and hereby consents to all the provisions of said will, this day proved and allowed in said court, and asks that this, her consent, be entered upon the records of said court; and the said Margaret F. Converse also requests that N. B. Kendall be appointed by said court as joint executor with her. Margaret F. Converse.’ ”

It is further shown by the records of the county court that the appellee was allowed, on her own application, the sum of $600 out of the estate, for one year's support. That the property left by the deceased was ample for the payment of the several bequests is a proposition not controverted on this appeal. The question is therefore fairly presented whether the appellee, by her unequivocal acceptance of the provisions in her favor, will be held to have confirmed and ratified the conditions imposed upon her by the testator. The general rule is thus stated in 1 Jarm. Wills, 415: “He who accepts a benefit under a deed or will must adopt the whole contents of the instrument, conforming to all of its provisions, and renouncing every right inconsistentwith it.” The right of election by the widow in like cases, as said in Lessley v. Lessley, 44 Ill. 527, rests upon the ground that “the wife has an interest in the estate of her husband, of which he cannot deprive her, by will or otherwise, without her consent; and when he attempts to do so she has the right to elect whether she will take the...