Payton v. Bowen

• Decision Date: 09 February 1884
• Citation: 14 R.I. 375
• Parties: H. FRANK PAYTON et ux. v. LOUISA A. BOWEN.
• Court: Rhode Island Supreme Court

14 R.I. 375

H. FRANK PAYTON et ux. v. LOUISA A. BOWEN.

Supreme Court of Rhode Island.

February 9, 1884

Under testamentary provisions as interpreted by this court A. took a life estate in all the testator's realty. A. then filed a bill in equity against the testator's widow praying, on the ground of certain agreements and acts of the widow, for a decree against her establishing her election to take certain testamentary provisions in lieu of dower.

Held, that an agreement made by the widow relative to the management of the realty and the collection and distribution of the rents could not be held tantamount to an election; the agreement being in disregard of rights and titles under the will, consistent with a claim of either party to ascertain these rights and equally in the widow's power to make after dower had been set out to her.

Held, further, that the widow's filing a bill in equity for partition claiming an estate for life under the will in one third of the realty could not be held tantamount to an election; her claiming an estate to which she was not entitled not being a choice between two estates to one of which she was entitled.

Held, further, that the widow's filing said bill professedly founded on the will could not be held tantamount to an election of the provisions of the will; such election if it existed, being made in ignorance of the nature of the estate chosen.

Held, further, that the widow's sole occupation and use of the mansion house and furniture could not, under Rhode Island law and in the circumstances, be held tantamount to an election.

An election, to be binding, must be made with a full knowledge of the nature of the estate chosen.

BILL IN EQUITY to affirm an alleged election by a widow of testamentary provision in lieu of dower and for an injunction. On demurrer to the bill.

Miner & Roelker, for complainants.

James Tillinghast & Nathan W. Littlefield, for respondent.

CARPENTER J.

The bill alleges that William M. Bowen, deceased, by his last will made certain provisions for the respondent, who is his widow, in lieu of her dower; that she has filed in the Probate Court her refusal to accept the provisions of the will and her demand for assignment of dower, and that proceedings for such assignment are now pending in this court on appeal; that before the filing of such refusal and demand she had elected, by certain acts set out in the bill, to accept the provisions of the will; and prays that the respondent may be decreed to have elected, and for an injunction against the proceedings to set out dower. The respondent demurs.

The complainant Amelia A. Payton takes a life estate, under the will, in all the real estate of the testator. The acts of the respondent, which are alleged to constitute the election, are set out in the bill as follows:

" 4. That she entered into an agreement and arrangement with

your orators to manage a portion of the real estate belonging to the said William M. Bowen at his decease, and to collect the rents thereof, and that your orator should manage the remainder of said estate, and that a division of the net income of the said property should be had between said respondent and your orators from time to time, in accordance with the provisions of said will, but subsequently repudiated and rescinded her said agreement as aforesaid.

5. That said respondent thereupon filed a bill in equity against your orators and their children before this honorable court, being No. 2126 of the equity causes, and now on the files of the court, and your orators crave leave to refer to the same and the record thereof; that in and by the said bill in equity the respondent alleged and claimed that she had in her, under and by the said will of William M. Bowen, deceased, a life estate in one third part of all the real estate of which said Bowen died seized and...