Smither v. Smither's Executor

• Decision Date: 08 January 1872
• Citation: 72 Ky. 230
• Parties: Smither v. Smither's executor.
• Court: Kentucky Court of Appeals

72 Ky. 230

Smither v. Smither's executor.

Court of Appeals of Kentucky.

January 8, 1872.

APPEAL FROM WOODFORD CIRCUIT COURT.

BRECKINRIDGE & BUCKNER, For Appellant.

PORTER & WALLACE, For Appellee.

JUDGE PRYOR DELIVERED THE OPINION OF THE COURT.

Clark O. Smither died in the county of Woodford, childless, leaving a last will and testament, his widow, Margaret E. Smither (the appellant), surviving him. Sidney U. Robertson, the executor of his will, filed a petition in equity in the Woodford Circuit Court for the purpose of having a proper construction of that instrument and a settlement of the estate. He alleges that the personal estate is insufficient to pay the debts of the devisor, and obtained an injunction, as provided by law in such cases, against the creditors, restraining them from instituting suits upon their respective claims, and asks the chancellor to adjudge a sale of so much of the real estate of the devisor as may be necessary to discharge the indebtedness. It is further alleged that false and fraudulent claims are being asserted against the estate, but no statement is made as to their nature or amount. The widow of the devisor and all of the devisees and heirs of the testator are made defendants to the action. The devisor at his death was the owner of a valuable estate, consisting mostly of lands, and in disposing of it seems to have made a just and liberal provision for his wife. The widow files her answer to the petition by the executor, in which she manifests an anxiety to abide by the provisions of her husband's will, but says that she has failed to accept or renounce its provisions, or to claim dower in her husband's estate, and can make no election with reference thereto within the time required by law without the aid of the chancellor; that it is alleged her husband is largely indebted as one of the members of the firm of McClure, Rowland & Co., engaged in the manufacture of patent roofing, and that one Joel McTyre has asserted what she believes to be a false and fraudulent claim against her husband's estate for twenty-four thousand dollars, which, if allowed him, will render the estate insolvent. She further states that she is entirely ignorant of the extent of her husband's liabilities, and is unable in the present condition of the estate to anticipate the result of the litigation in regard to these large claims asserted against it; that the creditors of the estate have been enjoined, not by her procurement, but at the instance of the executor, from prosecuting their claims, thus preventing any adjudication upon them within the twelve months allowed her by the statute to accept or reject the provisions of her husband's will. She asked the chancellor, in view of the facts presented, to permit her to make a conditional acceptance of the liberal devises made for her by electing to hold under the will in the event the alleged claim of Joel McTyre is disallowed, or to renounce its provisions if this claim is held to be valid.

Upon the hearing the court below refused to permit her to make a conditional election or afford her any relief, and from this judgment she has appealed.

Section 13 of chapter 30, Revised Statutes (1 Stanton, 424), provides "that a widow may relinquish what is given her by the will of her husband, and thereupon receive her dower and distributable share as if no will had been made; but such relinquishment must be made within twelve months after the probate, and acknowledged and left for record with the clerk of the court where probate was made, or acknowledged before two subscribing witnesses, and proved by one of them before, and left with, the clerk."

The statute recited is a mere enactment of that principle of equity recognizing the common-law right of the wife to dower, but requiring her when the husband has made a different provision to abide by it, or adhere to her common-law right. She is not allowed to accept what is given her by the will, and at the same time defeat the object and intention of the devisor by asserting her right to dower, but must make her election.

It is evident that the object of the enactment, requiring a renunciation by the widow of a devise to...