Harding's Adm'r v. Harding's Ex'r

• Decision Date: 14 October 1910
• Citation: 140 Ky. 277,130 S.W. 1098
• Parties: HARDING'S ADM'R v. HARDING'S EX'R et al.
• Court: Kentucky Court of Appeals

130 S.W. 1098

140 Ky. 277

HARDING'S ADM'R v. HARDING'S EX'R et al.

Court of Appeals of Kentucky.

October 14, 1910

Appeal from Circuit Court, Graves County.

Action between Add Harding's administrator and Tabitha Harding's executor and others. From a judgment for the last-named parties, the other party appeals. Affirmed.

Moorman & Warren and C. H. Noggle, for appellant.

Robbins & Thomas and R. N. Stanfield, for appellees.

CARROLL J.

On January 1, 1910, Tabitha Harding, the wife of Add Harding died testate. By the terms of her will she gave her husband $500. Her husband died on January 3, 1910, being at the time of his death, and also when his wife died, confined in one of the insane asylums of the state under a judgment of court. The will of Tabitha Harding was probated on January 18, 1910 and a few days thereafter the administrator of the husband filed a deed of renunciation, and elected to take in behalf of the decedent the distributable portion of the estate of the wife, which would have descended to him if she had died intestate. The question presented for decision: Did the administrator of the husband have the right to renounce the provisions made for the husband in the will? If he did not the devise must stand; if he did, he is entitled to receive from the estate the portion that would have descended to the husband if the wife had died without making a will.

Section 2067 of the Kentucky Statutes provides that: "A devisee may disclaim by deed, acknowledged or proved, and left for record in the clerk's office of the court in which the probate is made, within a year after notice of the probate." Russell's St. § 3946. Under this statute it has been held that the husband may renounce or disclaim a provision made for him in the will of his wife and elect to take under the law of descent and distribution the share to which as husband he would be entitled. Bottom v. Fultz, 124 Ky. 302, 98 S.W. 1037, 30 Ky. Law Rep. 479; Bains v. Globe Bank & Trust Co., 136 Ky. 332, 124 S.W. 343. As the husband if living could have renounced the provision made for him, the argument is made by his administrator that as he died before the will was offered for probate, and so did not have opportunity to exercise the election allowed him by law, his personal representative acting for the best interest of his estate ought to be permitted to make the election. We think that the right to renounce the provisions of a will cannot be exercised until after the will has been admitted to probate. Indeed, the statute in effect so provides by declaring that the disclaimer may be left "for record in the clerk's office of the court in which the probate is made, and within a year after notice of the probate." As the privilege of election did not accrue until after probate, the rights of the person having this privilege are to be determined by his condition or ability to then elect. What a person having the right might or might not have done before that time is not at all material. It is therefore not necessary to consider what the husband would or would not have done at the death of his wife if he had then been sane.

But, setting aside for the present the question of the husband's insanity, and treating the case as if he were sane when his wife died, the question remains: Did his death before the time to elect arrived pass the right to his personal representatives? If, as we believe, the right of election is a personal right, attaching alone to each individual devisee whose interest is affected, it would seem that the right of election would die with him. It is a privilege bestowed by the statute upon the individual that, if free from disability, he may or may not choose to avail himself of. What he will or will not do is a question for him alone to decide. The right of election does not depend upon the question whether it will be to the interest of the devisee to disclaim what is given under the will. If the sum devised is larger than the amount that would be received by renunciation, the devisee may yet renounce.

And so if the amount that would be received if an election were made would be greater than the sum devised, the devisee may yet prefer to accept the devise. In short, although the right of election was conferred for beneficial reasons, and its exercise usually depends upon the question of interest, yet, when the election is made within the time allowed and in the proper manner, it is wholly immaterial what reasons induced the devisee to make the election. Its validity cannot be inquired into. McCallister v. Brand, 11 B. Mon. 370. On the other hand, if the devisee who is not disabled by youth or infirmity does not choose to renounce the will, neither the court, a creditor, nor any other person can compel him to do so or make the election for him. This was expressly decided in Bottom v. Fultz, 124 Ky. 302, 98 S.W. 1037, 30 Ky. Law Rep. 479. There a creditor of the devisee Bottom sought to have the court to require him to elect whether he would take under the will of his wife or take the interest given him by law in her estate. In denying the creditor this relief, the court said: "This is a personal privilege given to the husband, and it is one which he may...