Moore v. Herd

• Decision Date: 07 December 1907
• Docket Number: 15,237
• Citation: 93 P. 157,76 Kan. 826
• Parties: ALBERT G. MOORE et al. v. JAMES HERD
• Court: Kansas Supreme Court

93 P. 157

76 Kan. 826

ALBERT G. MOORE et al. v. JAMES HERD

No. 15,237

Supreme Court of Kansas

December 7, 1907

Decided July, 1907.

Error from Douglas district court; CHARLES A. SMART, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

HUSBAND AND WIFE--Descents and Distributions--Wills--Election. The statute (Gen. Stat. 1901, § 7979) requiring a widow to elect whether to accept the provisions of her deceased husband's will or to take what she is entitled to under the law of descents and distributions applies also to a husband for whom provision is made by the will of his deceased wife. In view of its origin and its intimate connection with the act relating to descents and distributions it must be deemed to be affected by the language of section 28 thereof (Gen. Stat. 1901, § 2529), that provisions of that act in relation to the widow of a deceased husband shall be applicable to the husband of a deceased wife.

W. J Sturgis, S.D. Bishop, and A. C. Mitchell, for plaintiffs in error.

John Q. A. Norton, for defendant in error.

OPINION

MASON, J.:

The parties to this proceeding agree that it turns upon this question: Does the statute relating to the election by a widow to accept the provisions of her husband's will or to take what she is entitled to under the law of descents and distributions apply also to a husband for whom provision is made by the will of his deceased wife? The statute reads:

"If any provision be made for a widow in the will of her husband, and she shall not have consented thereto in writing, it shall be the duty of the probate court, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will accept such provision or take what she is entitled to under the provisions of the law concerning descents and distributions, and said election shall be made within thirty days after the service of the citation aforesaid; but she shall not be entitled to both." (Gen. Stat. 1901, § 7979.)

A section of an Iowa statute substantially similar to this, so far as relates to the matter under consideration, was held to require an election by a husband who wished to take the benefit of his wife's will. (Everett v. Croskrey, 92 Iowa 33, 60 N.W. 732, citing Shields v. Keys, 24 Iowa 298.) That section, however (Iowa Code 1873, § 2452), was a part of a chapter in another portion of which this language occurred: "All provisions made in this chapter in regard to the widow of a deceased husband shall be applicable to the surviving husband of a deceased wife." (§ 2440.) Practically the same language is found in the Kansas act concerning descents and distributions (Gen. Stat. 1901, § 2529), which was adopted in 1859 (Laws 1859, ch. 63), being taken with but slight changes from the Iowa statute.

In this state, however, the whole subject of wills, including the matter of the election by the widow, is treated in a different chapter, enacted at a later date. It is therefore difficult to find in the bare words of the statute justification for extending to the husband a provision relating in terms only to the wife. When, however, the matter is considered broadly, in the light of the history of this particular enactment and of the spirit of equality and uniformity which pervades all our legislation affecting the parties to the marriage contract, it is difficult to reach any other conclusion than that the real intention of the legislature was that their reciprocal rights should be precisely the same with regard to wills as in all other matters. There would be less occasion to depart from the literal reading of the statute if nothing more were involved than the manner of election--if the question were merely whether the husband should indicate his choice formally, as is required of a widow, or might do so by any method ordinarily open to a devisee who has rights inconsistent with the terms of a will--one, for instance, whose property the testator assumes to dispose of. But the issue is more important than this; the question is not how the husband shall elect but whether he shall be required to elect at all.

The Kansas act relating to wills (Gen. Stat. 1901, ch. 117) was framed by the commissioners appointed for the revision of the statutes in 1868, and passed in that year. It was borrowed very largely from the Ohio law. (Rev. Stat. Ohio, 1860, ch. 123.) There was inserted, however, a new section (Gen. Stat. 1901, § 7972) forbidding either spouse to bequeath away from the other, except by written consent, more than one-half of the property of the testator. The section of the Ohio statute upon which that now under consideration was based reads as follows:

"If any provision be made for a widow in the will of her husband it shall be the duty of the probate judge, forthwith after the probate of such will, to issue a citation to said widow to appear and make her election, whether she will take such provision, or be endowed of the lands of her said husband and said election shall be made within one year from the date of the service of the citation aforesaid; but she shall not be entitled to both, unless it plainly appears by the will to have been the intention that she...