McCallister v. Brand's Heirs

• Decision Date: 14 March 1850
• Parties: McCallister and Wife v. Brand's Heirs, etc.
• Court: Kentucky Court of Appeals

50 Ky. 370

McCallister and Wife v. Brand's Heirs, etc.

Court of Appeals of Kentucky.

March 14, 1850

Wills. Election. Renunciation by Widows.

APPEAL FROM THE FAYETTE CIRCUIT.

Robinson and Johnson, for appellants.

Robertson, Kinkead, and Breckinridge, for appellees.

OPINION

MARSHALL CHIEF JUSTICE.

Case stated, and purport of John Brand's will.

ON the 9th day of September, 1849, John Brand died, possessed of a large estate, real, personal and mixed, of which he had made a disposition by a will, dated in December, 1848. By that will he devised to his wife, Mrs. Elizabeth Brand, for her life, and in lieu of dower, his residence in Lexington, with the appurtenances and the household and kitchen furniture also, several lots, two cows, the choice of all his stock, and sundry slaves by name, etc. In addition to which, the will contains the following clause:

" I also give to my wife the dividends on my three hundred and fifty shares of Northern Bank stock during her life, with power to dispose of said stock at her death among my children or grandchildren, in such portions as she may please, provided her will is made three months before her death, and in case said dividends do not amount to two thousand dollars a year, the executors are directed to make up the deficiency."

Mrs. Brand is also empowered at her death to divide the testator's plate among his children or grandchildren, as she pleases. The will then proceeds to distribute the remaining estate among the testator's living children, George and Alexander Brand and Eliza McCallister, and the children of two deceased sons, William and John Brand, limiting the estate given to Mrs. McCallister, so as to revert on her death, in case she should leave no child, except her residence, which she is authorized thorized to devise among testator's descendants after the death of her husband, and providing for equality in the share of the two living sons and that of William Brand's children, and also for an equal distribution between them in the same manner, of the estate in remainder after the termination of the estates for life.

On the 12th of September, 1849, this will was admitted to probate in the Fayette County Court, after having been on the same morning, for the first time, opened and read in presence of George and Alexander Brand and Mrs. McCallister, and immediately afterward also read to Mrs. Brand, the testator's widow, who, upon understanding the inequality of the provision made for Mrs. McCallister, immediately indicated a desire to make a will herself, and caused the gentleman who had opened her husband's will, and was still in the house, to be brought into her room, where she forthwith caused to be written by him the following will:

" IN THE NAME OF GOD, AMEN:

I, Elizabeth Brand, widow of John Brand, deceased, being of sound mind, and disposed to devise a portion of the estate which my husband has left me, do, for that purpose, make this, my last will and testament. My beloved daughter, Eliza McCallister, may, and probably will outlive me. She is and has been a most kind and affectionate daughter, and my husband has devised to my two living sons, and one of my deceased son's children, the chief part of his estate, and it is my desire to give to my daughter the chief part of the bank stock, which I am authorized to dispose of by the will of my husband; I do therefore give and bequeath unto my daughter, Elizabeth McCallister, three hundred shares of stock in the Northern Bank of Kentucky, a part of that devised to me by my husband.

Mrs. Brand?? will.

In testimony," etc.

This will was duly executed and attested by three subscribing witnesses, and was made in the presence and with the concurrence of the two sons of the testatrix, devisees and executors of her husband, and who were two of the witnesses subscribing it. Mrs. Brand being, however, in a weak and precarious state of health, she, as well as others interested in her will and its object, entertained apprehensions that she might not live three months after its date. And upon being informed by her son George, who, with McCallister, had consulted counsel, that if she should die within the three months, her will might be ineffectual, she expressed a wish to effectuate it, and frequently expressed the desire that the intended benefit should be secured to her daughter. And being told that in the opinion of the counsel this might be done, he was sent for at her request, and presented an instrument of writing indorsed on the will, of the following tenor, which was executed on the 2d of October, 1849:

" In the event of my dying within three months after the execution of the within will, there may be some difficulty as to my will standing good, to prevent which I do hereby, in the event of my dying within three months, renounce the provisions made for me in the will of my deceased husband, and claim that there shall be assigned to me out of my husband's personal estate, the full value of the bank stock devised to my daughter, Elizabeth H. McCallister, and I hereby give to my said daughter the value of the bank stock in place of the bank stock itself. If I live more than three months from the execution of my will, this provision is to have no effect.

In testimony whereof," etc.

This instrument signed and sealed by Mrs. Brand, was attested in her presence by two subscribing witnesses, and at the same time taken into the possession of the party interested in it. And the testatrix having died on the 5th day of December, 1849, and within three months after the execution of her will, the said will and the foregoing instrument indorsed thereon, were on the day of December, 1849, offered in the Fayette County Court, and proved and admitted to record, two of the four justices composing the Court expressing the opinion that the writing indorsed on the will was not a valid statutory renunciation of the provisions of John Brand's will made for his wife.

For the purpose of settling the questions growing out of these acts of Mrs. Brand, and the interests dependent upon them, an agreed case was made up between George and Alexander Brand, devisees and executors of John Brand, of the first part, the trustees of the children of William Brand, deceased, of the second part, and McCallister and wife, the former having administered on Mrs. Brand's estate, of the third part; and upon the facts agreed, and the evidence taken under the agreement, the Circuit Court was called on to decide, first, whether the will of Mrs. Brand was effectual to pass the bank stock as therein devised; second, whether the instrument indorsed on the will was a valid renunciation of the provisions of John Brand's will by his widow, so as to entitle her to her thirds in his personal estate, to the value of the three hundred shares of bank stock, and whether on the whole case Mrs. McCallister is entitled to said shares or their value. To the facts already extracted from the agreed case, and from the evidence, is to be added the agreed fact, that the real estate devised by John Brand to his wife, was of less value than her dower, that the slaves so devised to her were of less value than her third of the slaves, and that the personal estate bequeathed to her for life was, even if bequeathed to her absolutely, of less value than the the third part of her husband's personal estate, after payment of all charges, and that no dividends on the bank stock were paid or became due before her death. It is further stated in the agreed case, that George and Alexander Brand make no resistance to the claim of Mrs. McCallister to the three hundred shares of bank stock or its value, and agree that to the extent of their interest of two thirds, Mrs. Brand's disposition of it shall have full effect.

The questions presented for decision.

The Circuit Court decided that the will of Mrs. Brand was ineffectual as an execution of the power given to her, in consequence of her death within three months after its execution; and that the instrument indorsed upon it was also ineffectual as a renunciation of the provisions of John Brand's will in favor of his wife, and gave no right to Mrs. McCallister to have the bank stock or its value.

Decision of the Circuit Court

In this Court, to which McCallister and wife have appealed, the question as to the efficacy of Mrs. Brand's will has not been urged, and the whole case has been placed in argument upon the question of the validity and effect of the instrument indorsed on the will, and whether it is or is not to be regarded under the statute, as a renunciation entitling the widow to her thirds, and enabling her to dispose of the same or any part thereof.

It is indeed, contended that, independently of the intrinsic character of the instrument, Mrs. Brand had, by making the will in execution of the power given by her husband, made a conclusive election to abide by his will; and this and other acts are relied on as precluding her from renouncing the provision made for her and claiming against the will. But the will, besides being made under circumstances which might authorize a retraction, being in its own nature and by law a revocable act, could not be conclusive, and it was as much in her power to revoke it by renouncing the provision for her under which it was made, as by a new will or other instrument of revocation. And as to other facts relied on, viz.: her residing in the mansion house, and using whatever the executors left on the premises in the accustomed manner, we do not perceive that she exercised or claimed any right inconsistent with the right or fact of renunciation, or which she might not have exercised if her husband had died intestate. Even the two cows, which are particularly referred to as being held under the...