Riley's Estate, In re

• Citation: 6 Wis.2d 29,94 N.W.2d 233
• Parties: In re ESTATE of John R. RILEY, Deceased. Jack R. DE WITT, Guardian ad litem for Margaret Louise Riley, Appellant, v. Margaret R. RILEY, Respondent.
• Decision Date: 02 January 1959
• Court: United States State Supreme Court of Wisconsin

Page 233

94 N.W.2d 233

6 Wis.2d 29

In re ESTATE of John R. RILEY, Deceased.

Jack R. DE WITT, Guardian ad litem for Margaret Louise

Riley, Appellant, v. Margaret R. RILEY, Respondent.

Supreme Court of Wisconsin.

Jan. 2, 1959.

Jack R. DeWitt, Madison, for appellant.

O. B. Porter, Madison, for respondent.

HALLOWS, Justice.

The issue presented is whether sec. 238.02(2), 27 W.S.A.1958, Cumulative Annual Pocket Part, p. 24, applies to the facts of this case. Sec. 238.02(2), stats., provides:

'(2) Neither the acceptance of a bequest or devise, nor the participation of the legatee or devisee in the probate proceeding, shall constitute an election by him to forego, waive or convey his pre-existing interest or right of survivorship in any property which the will or codicil attempts to bequeath or devise to another person, unless the will or codicil so provides in express terms.'

The determination of the applicability of sec. 238.02(2), stats., necessitates a review of the doctrine of election. The doctrine is of equitable origin and was first accepted in Wisconsin in the case of Allen v. Boomer, 1892, 82 Wis. 364, 52 N.W. 426. In that case the wife willed her husband's property to third persons and gave him property belonging to her. Under the doctrine the court required the husband to elect whether he would take under the will or would reject the provisions made for him therein and stand on his own rights as they existed irrespective of the will.

The doctrine of election is well established in equity jurisprudence and adopted by many states. In essence it places the obligation on the beneficiary under a will of accepting the bequest or devise provided for in the will and surrendering the right which such beneficiary had and which the will undertakes to dispose of, or of retaining such right and rejecting the bequest or devise and provisions of the will. This is a compulsory choice between two inconsistent rights or claims based on the intention of the testator that the beneficiary should not enjoy both. It is not a legal presumption. For the application of the doctrine to various fact situations and the states adopting the doctrine see Annotations in 156 A.L.R. 820, 110 A.L.R. 1317, and 166 A.L.R. 316.

The Allen case was followed by this court in Re Will of Schaech, 1948, 252 Wis. 299, 31 N.W.2d 614, 33 N.W.2d 319. In the Schaech case the testator willed to his daughter his interest in real estate which he owned jointly with his wife and to his sisters-in-law the proceeds of a life insurance policy which were payable to his wife as beneficiary, and bequeathed to his wife his personal property. The court applied the doctrine and put the wife to an election, which the court said under sec. 233.14 she had the right to postpone for one year from the time of the filing of the petition for probate. On rehearing this court pointed out sec. 233.14 did not provide an exclusive method of election and an equitable election could arise in participating in the probate proceedings by asserting a claim under the will. Since the widow had asserted her claim under the will the court held that she had made her election to take thereunder. Some practical difficulties of the application of the doctrine of election are found in the aftermath of that decision. See State ex rel. Schaech v. Sheridan, 1949, 254 Wis. 377, 36 N.W.2d 276.

In Re Will of Parker, 1956, 273 Wis. 29, 76 N.W.2d 712, 60 A.L.R.2d 730, the testator and his wife had joint bank accounts and the court construed the will giving one-third of his personal property to his wife as not intending to give only one-third of the testator's interest in the bank account to his wife or to pass such interest to third persons under the other provisions of the will. Unless the gift is irreconcilable with the estate or interest which the donee is required to relinquish there is no need for an election. In the Parker case the testator's intention was found not to require an election because both gifts could stand together and were not in conflict. In the Will of Hamburger, 1924, 185 Wis. 270, 201 N.W. 267, 37 A.L.R. 1413, we stated: 'The cardinal rule is to find out the intention of the testator and give it effect and to this rule all others are subordinate.'

Here the testator intended to give in trust to his daughter but jointly with and to his widow for the widow's life or until she remarry the income and use of all his estate, including specifically the homestead, which he owned in joint tenancy with his wife, and the remainder interest in the homestead to his daughter after the death of his wife or her remarriage, and the balance of the estate in such event to his three children. The attempted gift to the widow is intrinsically inconsistent with her right to take the home by survivorship under the joint tenancy and to enjoy the full use and income of the home during her life and to dispose of it as sole owner if and as she pleased.

The respondent argued at great length in his brief that the testator had no right to will the joint tenancy property. Of course, the testator as a tenant of a joint tenancy has no power to terminate such tenancy by will. In re Estate of Staver, 1935, 218 Wis. 114, 260 N.W. 655. It is the attempt to do so and the giving to the other joint tenant other property belonging to the testator which puts the joint tenant to an election so that the intention of the testator might be carried out.

There is nothing in the will to indicate the testator intended the widow to take both. In this case for the widow to take both would be unjust if the clear intention of the testator is to be fulfilled. At the time of the testator's death the widow was therefore under the necessity of making an election either to take under the will or to reject it.

As a general rule, a will speaks as of the testator's death. In re Estate of Pardee, 1942, 240 Wis. 19, 1 N.W.2d 803; In re Will of Johnson, 1921, 175 Wis. 1, 183 N.W. 888; In re Estate of Friedman, 1946, 251 Wis. 180, 28 N.W.2d 261. In Re Will of Parker, 1956, 273 Wis. 29, 76 N.W.2d 712, 714, 60 A.L.R.2d 730, we stated:

'The...