In re Estate of Goessling

• Decision Date: 30 April 1921
• Citation: 230 S.W. 613,287 Mo. 663
• Parties: IN THE MATTER OF THE ESTATE OF WILLIAM F. GOESSLING, deceased: ARTHUR C. GOESSLING, ELEANORA F. PETERS and EVELYN v. GOESSLING (Children of Testator), Appellants, v. WILHELMINA M. GOESSLING (Widow of Testator)
• Court: Missouri Supreme Court

230 S.W. 613

287 Mo. 663

IN THE MATTER OF THE ESTATE OF WILLIAM F. GOESSLING, deceased: ARTHUR C. GOESSLING, ELEANORA F. PETERS and EVELYN v. GOESSLING (Children of Testator), Appellants, v. WILHELMINA M. GOESSLING (Widow of Testator)

Supreme Court of Missouri

April 30, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Rhodes E. Cave Judge.

Affirmed.

Elliott W. Major, Charles G. Revelle and Lambert E. Walther for appellants.

(1) The acts of the widow under the will, such acts being inconsistent with any other theory. Moseley v. Bogy, 272 Mo. 319; Davidson v. Davis, 86 Mo. 440; Mendenhall v. Mendenhall, 53 N.C. 287; Allen v Allen, 121 N.C. 328; Treadway v. Payne, 127 N.C. 436; State ex rel. v. Holtkamp, 185 S.W. 204 205; Syme v. Badger, 92 N.C. 706; Wood v. Trust Co., 265 Mo. 511; Stoepler v. Silberberg, 220 Mo. 271; Casles v. Gray, 159 Mo. 595; Young v. Boardman, 79 Mo. 186; Stone v. Cook, 179 Mo. 537; Fox v. Wendles, 127 Mo. 511; Brant's Will, 40 Mo. 276, 64 L. R. A. 287. (2) When one is put to an election between two inconsistent courses and first adopts one by some act inconsistent with the other, such is an election which cannot afterwards be recalled. Stone v. Cook, 179 Mo. 534; Moseley v. Bogy, 272 Mo. 329; Ashlock v. Ashlock, 52 Iowa, 322; Mitchell v. Vest, 136 N.W. 1054. (3) Entirely without regard to the question of her election by acts her conduct in occupying the mansion which was of much greater value than her homestead rights and in accepting the bequest of $ 200 per month to which she was not entitled except under the will, and her various other acts which led others to believe that she had accepted the will estops her from renouncing and rejecting the same. Zook v. Welte, 156 Mo.App. 714; Lackland v. Stevenson, 54 Mo. 108; Hart v. Giles, 67 Mo. 175; Wood v. Trust Co., 265 Mo. 511; 1 Woerner's Am. Law of Adm. (2 Ed.) 500; Stone v. Cook, 179 Mo. 534. (4) The widow at all times had full knowledge of the value of the estate and of what the will gave her and, so knowing, performed the acts above recited. She at no time complained of the nature or extent of the provisions made for her by the will and indicated no dissatisfaction therewith until more than eleven months thereafter. She was a woman of intelligence and business qualifications. She knew that reputable attorneys had been employed to advise her and her co-executor upon all legal matters, and she had ready access to them as well as to the probate court and others from whom she could have received legal information. Her alleged lack of legal knowledge and information cannot operate to recall an election theretofore clearly made. Light v. Light, 21 Pa. St. 407; Woerner, Law of Admin. (2 Ed.) sec. 119, p. 269; Moseley v. Bogy, 272 Mo. 333; Underhill on Wills, sec. 731. (5) The statutory provisions that a testamentary gift by a husband to his wife of an interest in real estate shall be in lieu of dower unless otherwise declared by the will, and that in such case the widow shall not be endowed in any real estate of the husband unless she shall within the time and in the manner prescribed by the statute refuse to accept the provisions made for her by the will, have no application to the personal estate. Halbert v. Halbert, 19 Mo. 453; Pemberton v. Pemberton, 29 Mo. 408; Bryant v. Christian, 58 Mo. 103; Glenn v. Gunn, 88 Mo.App. 429. (6) By Sec. 349, R. S. 1909, when a husband dies leaving a child or children or other decendants, the widow is entitled absolutely to a share in the personal estate belonging to the husband at the time of his death, equal to the share of a child of such deceased husband. If the husband makes a different provision for his wife by will, she is put to her election, but there is no statute fixing the time or manner of signifying her election. Hayden's Admr. v. Hayden's Admr., 23 Mo. 398; Glenn v. Gunn, 88 Mo.App. 429. (7) Acceptance by the widow of the provisions of her husband's will in her favor will defeat her statutory or so-called dower right in the personalty when, as in this case, such provisions are inconsistent with her enjoyment of that right. Schwatken v. Daudt, 53 Mo.App. 1. (8) Acceptance of a part of the benefit under a will constitutes an acceptance of the whole will. Wood v. Trust Co., 265 Mo. 511; 40 Cyc. 1895; State ex rel. v. Holtcamp, 185 S.W. 204.

Geo. W. Lubke and Geo. W. Lubke, Jr. for respondent.

(1) Every widow is given by statute the right to renounce the provisions made for her by the will of her husband. R. S. 1909, sec. 361. (2) No act on the part of the widow, however solemn and formal, during the period within which she may renounce the provisions of the will, prevents her from renouncing the will, if she so chooses. Bretz v. Matney, 60 Mo. 444; Register v. Hensley, 70 Mo. 189; Spratt v. Lawson, 176 Mo. 175; Eggers v. Eggers, 225 Mo. 116; Orchard v. Stove Co., 264 Mo. 554. (3) Causing her husband's will to be probated and acting as executrix thereunder does not deprive the widow of her right to renounce the provisions made in the will for her. Simonton v. Houston, 78 N.C. 408; In re Gwin, 77 Cal. 314; In re Smith, 108 Cal. 121; In re Frey, 62 Cal. 661; Tyler v. Wheeler, 160 Mass. 206; Reeves v. Garrett, 34 Ala. 558; Benedict v. Wilsmarth, 46 Fla. 536; In re Estate of Proctor, 103 Iowa, 232; Milner v. Davis, 120 Iowa, 231; Williamson v. Boul, 184 N.Y. 605; Pace v. Pace, 271 Ill. 114; Whitridge v. Parkhurst, 20 Md. 62; Taylor v. Brown, 2 Leigh (Va.) 419; Cameron v. Cameron, Ohio Probate, 157. (4) The occupation by the widow of the homestead cannot be regarded as an acceptance of the provisions of her husband's will because the statute secures to her the right to occupy the same until her dower is assigned or she elects to take a child's part of the estate. R. S. 1909, sec. 366; Roberts v. Nelson, 86 Mo. 21; Wigley v. Beauchamp, 51 Mo. 544; Keene v. McVoy, 206 Mo. 42. (5) No election made by the widow is binding on her unless made with full knowledge of the circumstances and of her rights and with the intention of making an election. Payton v. Bowen, 14 R. I. 375; Milliken v. Milliken, 37 Ohio St. 460; Woodburn's Estate, 138 Pa. St. 606; Gam v. Gam, 135 Ind. 687; Hill v. Hill, 88 Ga. 612; Stone v. Vandermark, 146 Ill. 312; Yorkey v. Stinson, 97 N.C. 230; Wagner v. Wagner, 111 Va. 326; Owens v. Andrews, 17 N. M. 597, 49 L. R. A. (N. S.) 1072; Watson v. Watson, 128 Mass. 152; 1 Woerner on Admin. (2 Ed.) sec. 119. (6) The property received by the widow under the provisions of the will being much less than that she would have the right to take under the law without reference to the will, the doctrine of election has no application to the facts in the case at bar. Burgess v. Bowles, 99 Mo. 548; Ball v. Ball, 165 Mo. 327. (7) The acts of the widow to the time of filing her renunciation of the provisions of the will for her constitute no estoppel, because: first, she acted in ignorance of her legal right to renounce the provisions of the will, and second, no one interested in the estate of the deceased has acted on her conduct to his detriment. Garesche v. Inv. Co., 146 Mo. 451; Herman on Estoppel, sec. 1062; Spratt v. Lawson, 176 Mo. 179; Egger v. Egger, 225 Mo. 145.

HIGBEE, J. Walker, C. J., Woodson and D. E. Blair, JJ., concur; Graves, J., dissents in separate opinion in which Elder, J., concurs; J. T. Blair, J., dissents.

OPINION

In Banc.

HIGBEE J.

William F. Goessling died October 1, 1912, testate, leaving an estate of the value of about $ 200,000, of which $ 160,000 was personal property and $ 40,000 real estate. His homestead was worth about $ 14,000. He left surviving him three children by a former marriage, the appellants, and his widow, the respondent, who was forty-five years of age. By the first clause of his will, executed September 23, 1912, he directed that his debts be paid and that his executors take charge of all his property. The other provisions of the will are as follows:

"Second. I will and direct to my dear wife, Wilhelmina M. Goessling, the use of the homestead, No. 2932 University Street, St. Louis, Missouri, and the sum of two hundred (200) dollars to be paid to her each month, out of my estate, during her life or so long as she may remain my widow. I also give and bequeath to her all of my household effects of whatever nature or kind.

"Third. I will and direct to my mother, Mrs. William Goessling, the sum of fifty (50) dollars, to be paid to her each month out of my estate.

"Fourth. I devise and bequeath to my three children, namely, Eleanora F. Peters, wife of Frank E. Peters, and Arthur C. Goessling, and Evelyn V. Goessling, all the rest and residue of my estate of any nature or kind, to be divided share and share alike.

"Fifth. I hereby request and appoint my dear wife, Wilhelmina M. Goessling, to act as guardian for my daughter, Evelyn V. Goessling, until she become of age.

"Sixth. I hereby appoint Frederick W. Goessling and Wilhelmina M. Goessling, my wife, as executors of this, my last will, requesting that they be permitted to act without giving any bond."

On October 10, 1912, Frederick W. Goessling and the widow presented the will for probate and made formal application for letters testamentary. Letters were granted and the executor and executrix qualified without bond.

A supplemental final settlement was filed June 17, 1915, showing a net balance of $ 158,733.42, which was approved.

On the same day the three children of the testator filed a petition in the probate court praying an order of distribution in accordance with the terms of the will. This petition recites that the testator by the will gave to his widow $ 200 per month and the use of the homestead property during her life or widowhood, also all the household property, and that there be...