Jameson v. Jameson

• Decision Date: 15 February 1915
• Docket Number: (No. 189.)
• Parties: JAMESON et al. v. JAMESON.
• Court: Arkansas Supreme Court

173 S.W. 851

JAMESON et al. v. JAMESON.

(No. 189.)

Supreme Court of Arkansas.

February 15, 1915.

Appeal from Circuit Court, Columbia County; Chas. W. Smith, Judge.

Proceedings between W. L. Jameson and others, as executors of T. N. Jameson, deceased, and Mrs. Isadore Jameson. From a judgment of the circuit court reversing judgment of the probate court, the executors appeal. Affirmed.

T. N. Jameson died in August, 1912, leaving him surviving his widow, the appellee, but no children. He disposed of his estate by will, which was duly probated, naming the appellants herein as executors. His estate consisted of household and kitchen furniture, other personal property, and a little over $3,000 in cash, a lot in the town of Magnolia, upon which he lived, as his homestead, and 401 acres of other lands. He directed his executors to provide for the support and maintenance of his wife, the appellee, "out of the proceeds of any property I may own at the time of my death and not otherwise bequeathed, * * *" and also gave her for life the homestead, and disposed of all of his other estate to his heirs. No claims were probated against the estate.

The widow elected not to take under the will, and filed a petition in the probate court, setting out a description of the property of the estate and asking that she be allowed to take the portion thereof, as provided in sections 3, 72, and 74 of Kirby's Digest, and that she be allotted dower and homestead therein. The probate court had her dower and homestead interest assigned, but denied her the right to $150 and $300 under the provisions of sections 3 and 74 of Kirby's Digest. She appealed from this order to the circuit court, where, upon hearing, the court allowed her one-half of the money and personal property of the estate as dower and a like one-half dower interest in the lands and the homestead, and also the entire homestead for life, and $300 and $150 out of the moneys on hand under the provisions of sections 3 and 74 of Kirby's Digest. From this judgment the executors bring this appeal.

C. W. McKay, of Magnolia, for appellants. Stevens & Stevens, of Magnolia, for appellee.

KIRBY, J. (after stating the facts as above).

It is contended for appellants that, when appellee elected not to take under her husband's will, she was only entitled to dower in his estate, and not to any of the allowances made by statute to the widows of deceased persons. The statutes provide that, if land be devised or a pecuniary or other provision made for a woman by will in lieu of dower, she shall elect whether she will take the devise or bequest or be endowed of the lands of her husband, and that, if her husband shall devise any portion of his real estate to his wife, it shall be taken in lieu of dower, unless the will declares otherwise. Sections 2699, 2711, Kirby's Digest.

There was no devise in this will to the wife of lands or bequest made expressly in lieu of dower, but only a direction that she should be provided for and maintained during her life out of the proceeds of all the property of the testator's estate with the devise to her of the homestead for life. She had the election to accept the devise or bequest, whether made by the terms of the will in lieu of dower or not. Sections 2711 and 2712.

The provisions made for widows by sections 3, 72, and 74 are in addition to and not in lieu of dower. Ex parte Grooms, 102 Ark. 322, 143 S. W. 1063; Stull v. Graham, 60 Ark. 461, 31 S. W. 46; Lambert v. Tucker, 83 Ark. 416, 104 S. W. 131.

The...