Reville v. Dubach

• Decision Date: 10 June 1899
• Docket Number: 11102. 11103
• Citation: 57 P. 522,60 Kan. 572
• Parties: M. C. REVILLE, EMMA MUSE, et al., v. ALBERT O. DUBACH et al. M. C. REVILLE et al. v. EMIL G. DUBACH
• Court: Kansas Supreme Court

57 P. 522

60 Kan. 572

M. C. REVILLE, EMMA MUSE, et al., v. ALBERT O. DUBACH et al.

M. C. REVILLE et al. v. EMIL G. DUBACH

No. 11102. No. 11103

Supreme Court of Kansas

June 10, 1899

Decided January, 1899.

Error from. Doniphan district court; R. M. EMERY, judge.

Judgment reversed and causes remanded for new trials.

M. C Reville, D. H. Martin, and Waggener, Horton & Orr, for plaintiffs in error.

J. J Baker, and Ryan, Davis & Reeder, for defendants in error.

OPINION

JOHNSTON, J.:

Each of the above-entitled causes involves the title to eighty acres of land in Doniphan county, and both of the tracts together constituted the farm of Thomas Williams, who had an unquestioned title to the same on April 6, 1870. At that time he made a will by which he gave to his wife, Sarah A Williams, a life estate in all of his land, and provided that at her death it should go to his two sons, William B. Williams and Thomas G. Williams, and be divided equally between them. On April 12, 1870, he died, leaving the wife and two sons above mentioned as his only heirs. On August 12, 1870, which was about a month after William B. Williams became of age, the will was admitted to probate, and it is claimed on one side, but denied on the other, that the widow expressly elected to take under the will, and also that her conduct in respect to the land was equivalent to an election, and estopped her to deny that she elected to take under the will. It is claimed, but disputed, that on March 5, 1871, William B. Williams married Emma Muse, then known as Emma Stotts, and whatever the fact may be in respect to them, it appears that they lived together as husband and wife until his death, on September 9, 1873. On October 6, 1872, a child was born to them, named Ella Williams, and she died in less than a year after her father's death, leaving her mother, Emma, as her only heir. On October 9, 1876, Thomas G. Williams, the remaining son of Thomas Williams, deceased, died intestate, unmarried, and without issue, and no administration was ever had upon his estate. Some time after the death of her husband, Sarah A. Williams married David Lee, and on August 19, 1880, they together executed a deed purporting to convey the land in controversy to the Dubachs, who have since held possession of the same. Since the death of William B. Williams, Emma has intermarried with. W. W. Muse, and she claims a one-half interest in the property in controversy as the wife of William B. Williams and as the only heir of her daughter, Ella Williams.

M. C. Reville entered into a contract with Emma Muse, under which he claimed an equity in the property, depending upon the successful termination of this proceeding. The Dubachs insist that Emma Muse was not the wife of William B. Williams, and that the child Ella Williams was not entitled to inherit as his daughter; that, as the widow of Thomas Williams, Sarah A. Lee inherited an undivided one-half of the land, and as the mother of the sons she inherited the remaining undivided one-half of the land, giving her the entire estate, and that her conveyance of the land to the Dubachs was complete and effectual. The trial resulted in favor of the Dubachs, and the titles claimed by them were quieted as against the claims of the opposing parties.

One of the important questions before the trial court was whether or not the widow elected to take under the will. No record of such an election was found in the probate court, and the contention of the Dubachs is that the record of that court is the only evidence by which an election can be established. This view was sustained by the trial court, and much of the testimony offered tending to show an election in fact was excluded. In this there was error. It seems to be well settled that an election may be made by acts in pais, and if the acts are plain and unequivocal, and done with full knowledge of the widow's rights and of the condition of the estate, it is as binding as though it was formally made. If she makes a deliberate and intelligent choice under the will, and thereafter proceeds as though an election were made, she is estopped from claiming under the statute. So, it has been held, "an election by a widow to take under her husband's will in lieu of dower at law may be evidenced by matter in pais as well as of record, but it must be shown that she had requisite knowledge of the value and character of her husband's estate, and that her intention was consistent with such choice." ( Bradfords v. Kents, 43 Pa. 474.)

In Thompson v. Hoop, 6 Ohio St. 480, a question somewhat similar to the one we are considering was involved. There was a devise of real estate to a widow for life, and the remainder in fee to a son. The widow failed to make a formal election to take under the will, as the statute prescribes, but actually and in fact took under the will and had the use and occupancy of the land devised for a series of years, and it was held that she was estopped to deny her election to take under the will.

Stilley v. Folger, 14 Ohio 610, is cited as an authority to show that the only mode of proving an election is by the record, unless the record is lost or destroyed. This statement of the law is disapproved by the supreme court of that state in subsequent decisions. In Millikin v. Welliver, 37 Ohio St. 460, it is said that the decision in Stilley v. Folger, supra, seems at variance with Thompson v. Hoop, supra, and numerous other cases where an estoppel in pais was proved and held effectual.

Although the question has not been directly adjudicated in this court Sill v. Sill, 31 Kan. 248, 1 P. 556, and...