Horbach v. Horbach , 127 Minn. 223 ( 1914 )

Dibeix, C.

Daniel Horbach bequeathed to his wife Catherine Horbach $400. He devised the rest of his estate, including his homestead, to his three children. The will provided that the bequest to his wife was “in lieu of any provisions made for her by the laws or statutes of the state of Minnesota.” At the time of the execution of the will Mrs'. Horbacb assented thereto and accepted the provisions of it in lieu of any provisions made for her by the laws or statutes of the state, and particularly declared that she waived any right given her by statute in the homestead of her husband.

After her husband’s death she selected personal property to the value of $500 and petitioned that it be set aside for her. The probate court made an order setting it aside. Upon appeal to the district court the order was affirmed. This appeal is from the order of the district court affirming the order of the probate court.

By subdivision 1, B. L. 1905, § 3653 (G. S. 1913, § 7243), it is provided, among other things, that the wife shall be entitled to personal property amounting to $500, to be'selected by her. It was under this section that Mrs. Horbach claimed the right to select the personal property. The subdivision of the section of the statute cited contains this provision :

“She shall receive such allowances when she takes the provisions made for her by her husband’s will, as well as when he dies intestate.”

The precise question is whether, when the wife at the time of execution of the will assents to it and accepts its provisions in lieu of the provisions made for her by statute, she may still claim her statutory allowance of $500. We hold that she may. There is nothing in the case to make the result different from the ordinary case of an election to take under the will. When she takes under her husband’s will she still has the absolute right to the allowance specified in subdivision 1. So far as we are advised the question presented has not been decided in this state. The conclusion we have reached was forecasted by the decision in Blakeman v. Blakeman, 64 Minn. 315, 67 N. W. 69.

Order affirmed.