In re Estate of Dixon

• Decision Date: 14 June 1949
• Docket Number: 2418
• Citation: 207 P.2d 510,66 Wyo. 197
• Parties: In the Matter of the Estate of ALVAY DIXON, Deceased, LLOYD E. DIXON, EDITH A. BROKAW, MARGARET A. LeBEAU and CHARLOTTE P. ROSENLIEB, Petitioners and Respondents, v. ROSEMARY DIXON, BRYAN WHITE and FRANCES H. WHITE, Protestants and Appellants
• Court: Wyoming Supreme Court

207 P.2d 510

66 Wyo. 197

In the Matter of the Estate of ALVAY DIXON, Deceased, LLOYD E. DIXON, EDITH A. BROKAW, MARGARET A. LeBEAU and CHARLOTTE P. ROSENLIEB, Petitioners and Respondents, v. ROSEMARY DIXON, BRYAN WHITE and FRANCES H. WHITE, Protestants and Appellants

No. 2418

Supreme Court of Wyoming

June 14, 1949

APPEAL from District Court, Carbon County; V. J. TIDBALL, Judge.

Proceeding in the matter of the estate of Alvy Dixon, deceased, on the petition of Lloyd E. Dixon and others for partial distribution, to which Rosemary Dixon and others filed objections. From a judgment granting the petition, Rosemary Dixon and others appeal.

Judgment affirmed.

For the protestants and appellants, the cause was submitted upon the brief of C. A. Brimmer of Rawlins, Wyoming, and Sullivan &amp Sullivan of Laramie, Wyoming, and oral argument by Mr Brimmer and J. R. Sullivan.

POINTS OF COUNSEL FOR APPELLANTS

In its primary and technical sense, "estate" refers only to an interest in land; but it has acquired a much wider import and application, being applied to all property of every description, including personal property as well as realty, and in its most extreme sense signifying everything of which riches or fortune may consist, every species of property possessed by an individual or which comes into possession of his representatives after his death. North v. Graham, (Ill.) 85 N.E. 267, 18 L. R. A. N. S. 624.

When the term "and" is used, it is presumed to be used in the conjunctive sense, unless the legislative intent is clearly contrary. Ahrweiler v. Board of Sup'rs Mahaska Co., 226 Iowa 229, 283 N.W. 889; Heckathorn v Heckathorn, 284 Mich. 677, 280 N.W. 79.

It is an elementary rule of construction that effect must be given, if possible, to every word, clause, and sentence of a statute. By giving effect to the word "and" does not render the clause in which it occurs unintelligible nor lead to an absurdity. Nor is the word generally regarded of a flexible character, or of a dubious or varied meaning, permitting it to be enlarged, or restricted, or to be greatly varied, in order to give effect to the fundamental purpose of a statute, and to carry out the intent of the law-making body. State v. Montello Salt Co., 34 Utah 458, 463, 98 P. 549.

It is elementary that the intent of the law-maker is to be found in the language that he has used. If the meaning of the language be plain, there is no room for construction. Brennan v. Midwest Refining Co., 29 Wyo. 116, 120, 210 P. 939.

The renunciation by a widow of her testamentary provision does not create a new right, but merely confirms a pre-existing right which the law creates in the right to elect. McCallister v. Brand's Heirs, 50 Ky. 370.

The husband executes his Will subject to the law in force when it shall take effect; and, therefore, his devisees cannot complain. He might have cut off his heirs without any token of remembrance. Not so with his wife. Her right is paramount. It depends not upon his kindness, much less his caprice. Hartshone v. Ross, 2 Disney (Ohio) 15.

The weight of authority in the United States, as shown by cases construing statutes similar to Section 6-301, W.C.S. 1945 holds that the surviving spouse who renounces the Will and elects to take under the statute is entitled to an undivided one-fourth of the real property as well as an undivided one-fourth of the personality in the estate.

If a husband or wife die testate, leaving no child or descendants of a child, the surviving husband or wife may, if he or she elect, have, in lieu of dower in the estate of which the deceased husband or wife died seized * * * and of any share of the personal estate which he or she may be entitled to take with such dower, absolutely, and in his or her own right, one-half of all the real and personal estate, which shall remain after the payment of all just debts and claims against the estate of the deceased husband or wife. Schaffenacker v. Beil (1925), 320 Ill. 31, 150 N.E. 333.

Inferences respecting testator's wishes cannot be indulged in determining the source of payments to the testator's surviving spouse electing to take an intestate share of the estate. A testator's surviving wife, electing to take an intestate share of his estate, is not solely entitled to and may not be excluded from participation in any individual item of property, but becomes a tenant in common of one-third of all of testator's property after payment of funeral expenses and debts, irrespective of the nature of the property and whether testator attempted to give it to another in disregard of her rights. In re Topazio's Estate, 22 N.Y.S.2d 847, 175 Misc. 132.

Where a widow renounces the beneflts attempted to be conferred upon her under the Will of her husband and elects to take under the statute, she receives the share of his estate that she would have taken had he died intestate, which is one-half in value after the payment of his debts. The statute gives the surviving spouse a right to a non-barrable intestate share--the election to take against the Will makes the guaranty effective. Tomb v. Bardo, 153 Kan. 766, 114 P.2d 320.

In some jurisdictions the rule is established that the residuary estate must bear the whole loss caused to the beneficiaries by the widow's election to take against the Will, and cannot share it with specific legacies if there remains enough to pay the latter, unless there is a plain intention in the Will that the residuary legatee is a preferred object of the testator's bounty. 28 R. C. L. Wills Sec. 326.

A Will will be declared inoperative when subject matter on which the Will was intended to operate has been so changed and manifest plan and purpose of testator have been effectually destroyed by election of surviving spouse to take under statute. In re Hunter's estate, 129 Nebr. 529, 262 N.W. 41.

For the petitioners and respondents, the cause was submitted upon the brief and also oral argument of J. R. Armstrong of Rawlins, Wyoming.

POINTS OF COUNSEL FOR RESPONDENTS

Where the widow elects not to take under the Will and demands assignment of her dower as of all the lands of which the testator died seized, and it appears that there is land enough to set off the dower without interfering with land speciflcally devised for life, it should be so done; and it is error to direct that the dower be set off in part in the lands so specifically devised for life.

While in such case the devisees who are prejudiced by the widow's election to be endowed of the lands of her husband are equitably entitled to compensation out of the rejected provisions made for her in the Will, yet, where the rejected provisions do not fully compensate, the resulting uncompensated loss should fall upon the residuary estate in preference to the specific devises, unless a contrary intention appears from the Will. Dunlap v. McCloud, 95 N.E. 774.

The entire loss to a specific devisee shall be imposed upon the remaining portion of the estate where the testator has manifested that intention. Pitman v. Pitman, 107 P. 235, 27 L. R. A. N. S. 602.

Where legacies and devises are abated on account of a superior claim of the widow, in consequence of her election, the court will reduce legacies and devises of the same class proportionately, but specific legacies and devises are not in the same class as those which are residuary. As a general rule residuary legatees and devisees take what is left and their legacies and devises abate before specific devises. Pace v. Pace, 110 N.E. 878.

The general rule applicable to cases of this type is that the election to take against the Will defeats the intention of testator in part; and the court will endeavor to ascertain his primary intention and to carry it into effect as far as it can be done with the minimum disturbance of the general plan of the Will. Page on Wills (2d. Ed) Vol. 2, sec. 1224.

General legacies are first taken to satisfy husband's intestate share before specific devises or legacies are disturbed, where husband elects to take statutory share of wife's estate in lieu of provisions in wife's Will. Shannon v. Eno (Conn.) 179 A. 479.

The only limitation upon the right of the owner to dispose of his property by Will has reference to the proportional part of the value of his estate. In other respects his discretion is unshackled. The authority to dispose of his property by Will is general; the limitation or qualification of this right is special and particular. In the nature of things, it is impossible that a part of each specific article of property should be allotted to the children. To deprive the testator of the privilege of selecting items of property for bequest would often, if not generally, take from him the incentive for making it. The object of the law was to secure to children a just and reasonable portion to which the law declared they were entitled, it was immaterial where or in what they received it. In re Dwyer's Estate, 115 P. 242, 246.

BLUME, Justice. RINER, C. J. and KIMBALL, J., concur.

OPINION

BLUME, Justice.

This is a proceeding for partial distribution of the estate of Alvy Dixon, deceased, as permitted by Section 6-2304, Wyo. Comp St. 1945. The petition was filed by the four children of the decedent and asked only for the distribution to them of property specifically devised to them as hereinafter mentioned. Rosemary Dixon, the widow of the deceased, and Bryan White and Frances H. White, grantees of some of her interest in the estate, filed objections to such partial distribution. But the court granted the petition, setting off and distributing to each of the children a separate ranch, each of which was specifically devised to them respectively under the last will of said decedent. The widow and Bryan White and ...