McGaughey v. Eades

• Decision Date: 18 March 1901
• Citation: 29 So. 516,78 Miss. 853
• Court: Mississippi Supreme Court
• Parties: JAMES D. MCGAUGHEY ET AL. v. CALLIE EADES

29 So. 516

78 Miss. 853

JAMES D. MCGAUGHEY ET AL. v. CALLIE EADES

Supreme Court of Mississippi

March 18, 1901

March 1901

FROM the chancery court of Leake county. ADAM M. BYRD, Chancellor.

This was a probate proceeding in the chancery court in which McGaughey and others, appellants, legatees under the will objected to an allowance to Mrs. Eades, the appellee, the widow of the testator. The objection was disallowed by the court below, and the objectors appealed to the supreme court. The opinion states the facts of the case.

Judgment reversed and remanded.

O. A Luckett, for appellants.

I recognize the force and effect of the two decisions of McReary, Executor, v. Robinson, 12 Smed. & M., 318, and Turner v. Turner, 30 Miss. 428, but insist that they do not decide the point of contention in this case.

By an examination of the will of Col. Eades, the court will perceive that he settled a legacy of $ 1,000 on his widow, in full of all interest, claim or right in and to his estate, and by accepting its provision, she is estopped from claiming any other amount or part of it, whether by way of one year's allowance or otherwise.

If the bequest to her was without condition, then there would be no inconsistency in her making claim for the year's allowance. Has the testator the right to annex such conditions to this legacy in his will? No public policy is violated by it, any more than would be by a clause restricting the dower rights of the widow, which has been upheld by the courts of England and America. Walton v. Hill, 8 U. C. C., Q. B., 562; Adams v. Adams, 39 Ala. 274; Simmons v. Simmons, 78 Ala. 368; Kennedy v. Mills, 13 Wend. (N.Y.), 555; Van Orden v. Van Orden, 10 Johns. (N.Y.), 31, s.c. 6 Am. Dec., 314.

The doctrine of election applies in this case, and the widow having elected to take under the will and to accept a bequest with its conditions and restrictions, is now estopped from claiming any other rights or interest or claim in the estate, even if they are conferred upon her by law, regardless of the will of the testator. 2 Story's Equity Jur., sec. 1075; Gibson v. Gibson, 1 Drew, 42; 17 Eng. L. and Eq., 362; Dillon v. Parker, 1 Swanst., 398; Wilson v. Wilson, 1 DeG. & Sm., 152; 11 Jur., 793; Lee v. Tower, 124 N.Y. 370; Nutt v. Nutt, 1 Freeman's Chancery Rep., 128; 2 Story's Eq. Jur., sec. 1077, and note 2; Peter's v. Bain, 133 U.S. 670 (S.Ct. 354); Penn v. Guggenheimer, 76 Vt. 839; Hyde v. Baldwin, 17 Pick., 303; Havens v. Sackett, 15 N.Y. 365; Fetter on Equity, sec. 24, p. 51.

A failure to renounce the will within six months under our statute would be tantamount to an election. Wilson v. Cox, 49 Miss. 544; Cowdrey v. Hitchcock, 103 Ill. 242; Warren v. Warren, 148 Ill. 641; Garn v. Garn, 135 Ind. 690; Burden v. Burden, 141 Ind. 471; Kyne Kyne, 48 Iowa 21: Everett v. Croskrey, 92 Iowa 333; Pratt v. Felton, 4 Cush. (Mass.), 174; Reed v. Dickerman, 12 Pick. (Mass.), 146; Craven v. Craven, Dev. Eq. (17 N. C.), 345; Waterbury v. Netherland, 6 Heis. (Tenn.), 512.

Receiving a part of the legacy under the will is an election to stand by the will. If the provision for the widow be inconsistent with the claim for dower, her acceptance thereof, where it is expressly declared to be in lieu of dower, will bar her to a claim of dower. Hunter v. Hunter, 95 Iowa 728; Hovey v. Hovey, 61 N.H. 599.

J. B. Sullivan, for appellee.

It was not the intention of the testator to preclude the widow from claiming her year's allowance. But, if he intended to cut off her right to one year's support, he had no such power. This right could not be denied by the testator, if he had expressly so declared in the will. It is a statutory right, a privileged claim, which cannot be denied her. In Crosswell's Executors and Administrators, on page 310, this language is used: "The fact that there is a will does not invalidate this claim, and, although the widow may have accepted the provision made in the will in lieu of dower, she may still have an allowance, or even though the provision of the will is in lieu of the allowance."

In Turner v. Turner, 30 Miss. 428, the court, in discussing the right of the husband to dispose of exempt property by will and the right of the widow to the year's allowance, said: "The allowance for a year's provision stands upon different ground--that of the immediate necessity of the widow and children. It interferes with no right of disposition which the testator could be presumed to make of his property, and therefore, from its peculiar nature, is allowed as a privileged claim upon his estate, whether he has left a will or not."

OPINION

TERRAL, J.

Joseph D. Eades, of Leake county, made his last will and testament, by which he disposed of all his property. By the fifth item of said will he bequeathed to his wife, Callie, $ 1,000, to be paid to her at once upon his death, and, if the payment of said sum was delayed, it was to draw ten per centum interest from his death. He expressly stipulated in his will that said sum of $ 1,000 should be in lieu of all exemptions and other demands or interest in his estate, both real and personal. In the eighth item of his will he directed the legacy given to his wife to be paid before all other legacies, and in the twelfth item of his will he declared that it had been his aim to make his wife equal to any one of the other heirs and no more.

The appraisers of the estate allowed and set apart to the widow $ 150 in money, for one year's provisions and necessary wearing apparel. The other legatees objected to...