In Re Roberts'estate , 135 Mont. 149 ( 1959 )

THE HONORABLE VICTOR H. FALL, District Judge:

The facts involved in this appeal are:

George W. Roberts died testate on November 9, 1954. He left surviving his widow, Loretto Lohman Roberts. There were no children. The will was offered for and admitted to probate. No question whatever has been raised relative to the validity of the will. Letters testamentary were granted to the' surviving widow, respondent herein, and her coexecutor on December 4, 1954. The inventory and appraisement filed April 19, 1955, disclosed that the estate consisted wholly of personal property —cash in the sum of $49,296.60, stocks, bonds, notes and mortgages, which together with other personal property amounted to a total value in excess of $306,000. On June 18, 1955, a supplemental inventory and appraisement listed, “for tax purposes only,” real.property situate in Cascade.County, Montana, of the value of $25,000. Total creditors’ claims filed amounted to less than $1,500. Under the terms of the will the testator left two legacies: one in the sum of $20,000 to his brother, Franklin H. Roberts; and a like legacy to his sister, Helen Roberts Truax. The entire residue. of the estate was left to the surviving widow, respondent herein.

On May- 27, 1955, Loretto Lohman Roberts, surviving widow, pursuant'to the provisions of sections 22-107 and 22-108, R.C.M. 1947, filed her renunciation of the will. No question is raised as to her right to renounce, nor as to the sufficiency of the renunciation'filed as to form'.

On June 14, 1955, Loretto Lohman Roberts filed her petition for determination' of heirship, resulting after due presentation to the court below, in this court’s decree dated December 14,- 1955; and filed December 17, 1955, that she was entitled' under the law to the whole of the estate. This appeal is ■ from the judgment and decree.

The sole question presented 'is,' may a surviving widow by renouncing the benefits of a will thereby create an intestacy? The question has never been- squarely before this court prior to his appeal. • • •

The right to dispose of property by will is a valuable right and will be protected by'the courtsj absént-certain wéll-défined exceptions as to 'capacity, none of'.which are "presented here and subject to certain restrictions as to amount. Ordinarily a renunciation is used by a surviving widow when her protected dower interest in real property exceeds in value the provisions made for her under the will.

The “renunciation” statute applicable herein, section 22-107, R.C.M. 1947, and prior to amendment, read as follows:

“Every devise or bequest shall bar a widow’s dower in lands or her share in personal estate unless otherwise expressed in the will; but she may elect whether she will take such devise or bequest, or whether she will renounce the benefit of such devise or bequest, and take her dower in the lands and her share in the personal estate.” This section was amended by the enactment of chapter 231, Laws of 1955, effective July 1, 1955, to read as follows:

“Every devise or bequest to her by her husband’s will shall bar a widow’s dower in his lands and her share in his personal estate unless otherwise expressed in the will; but she may elect whether she will take under the provisions for her in the will of her deceased husband or will renounce the benefit of such provisions for her, and take her dower in the lands and her share in the personal estate under the succession statutes, as if there had been no will, but not in excess of two-thirds (2/3) of the husband’s net estate, real and personal, after the payment of creditors’ claims, expenses of administration and and all taxes, including state and federal inheritance and estate taxes.” The 1955 amendment is not applicable here and it is to be considered only as it might aid in statutory construction.

It will be noted that under the provisions of section 22-107, R.C.M. 1947, supra, prior to the amendment and the law with which we are concerned, provided, in case of a widow’s renunciation she would then “take her dower in the lands and her share in the personal estate. ’ ’ Dower is defined by section 22-101, R.C.M. 1947, and is not applicable here, as no real property is involved in this appeal. “* * * her share in the personal estate” was not defined prior to the enactment of chapter 231, Laws of 1955, and we need not define it here for reasons that follow.

Onr statutes relating to dower were evidently adopted from California, this is not true of those relating to dower. California has no statutes comparable to ours which are now found in sections 22-101 and 22-107, R.C.M. 1947. Our statutes on the subject were adopted in 1876, and are found in the Laws of Montana, Ninth Session, commencing on page 63. Section 1 thereof was an exact copy of section 1 of the statutes of Illinois on dower found in Scates, Treat and Blackwell Statutes of 1858 (IR. Rev. Stat. 1845, Chap XXXIV). It now appears with an amendment added to the codes by Section 228, Civil Codes of 1895 as section 22-101.

Section 22-102 is an exact copy of section 3 of the Illinois statute.

Section 22-103 is an exact copy of section 4 of the Illinois statutes.

Section 22-104 is an exact copy of section 5 of the Illonois statutes.

Section 22-105 is an exact copy of section 6 of the Illinois statutes.

Section 22-107 before its amendment in 1955 was an exact copy of section 10 of the Illinois statute except that the Illinois statute had on the end the words “of her husband,” but the omission of those three words from our statute did not change its meaning.

Section 22-108 is identical with section 11 of the Illinois statute.

Section 22-109 is identical with section 15.

Section 22-110 is identical - with section- 16.

Section 10 of the Act of 1876. was identical with section 17 of the Illinois statute, but has since been dropped from our statute, and section 11 of the Act of 1876 was identical with section ■ 18 of the Illinois statute, but it too has been dropped from our statute. ■ . '

It is quite apparent that our. statutes .on dower, with some slight modifications not material here,- were- adopted from Illinois. Prior to -their' apodtion the Supreme ..Court in Illinois under facts identical with those here- held that the widow, upon her election to renounce the will, was not entitled to all of the personal property of the testator under statutory provisions giving her that right when her husband died intestate.

The Illinois court in speaking on that point in McMurphy v. Boyles, 49 Ill. 110, 113, which was decided in 1868, said:

“On the other hand, it is urged by counsel for appellant as already stated, that the widow, having renounced the will, is entitled to the same share of the personal estate that she would have received had there been no will, which in this ease, as there were no children or descendents of children, would be the whole. This theory proceeds upon the assumption that, by the widow’s renunciation of the will, the testator had become intestate, which is simply a contradiction in terms. The will remains, notwithstanding she has chosen to decline its provisions in her favor, and by no act of hers can it be annihilated, and the estate of her husband be converted into an intestate estate. Yet the 46th section of the statute of wills, under which this claim to all the personal property is made, applies only to intestate estates. This case, then, is not within its category.”

This construction has been consistently followed by the Illinois court. In Kilgore v. Kilgore, 319 Ill. 298, 149 N.E. 754, 755, the court said: “When he died testate, she acquired no vested right in his estate under the law of descent * * *. [renunciation] did not give or purport to give to her the same interest which she would have received in case he died intestate. * * *

“ * * * This court has held in a long line of cases that where the widow renounces the provisions made for her by the will of her deceased husband and elects to take under the law, such renunciation does not have the effect to render any part of the estate of the deceased husband intestate estate.” McMurphy v. Boyles, 49 Ill. 110; Marvin v. Ledwith, 111 Ill. 144; Re Qua v. Graham, 187 Ill. 67, 58 N.E. 357, 52 L.R.A. 641; Laurence v. Balch, 195 Ill. 626, 63 N.E. 506; Lewis v. Sedgwick, 223 Ill. 213, 79 N.E. 14; Dunshee v. Dunshee, 251 Ill. 405, 96 N.E. 298, and Id., 263 Ill. 188, 104 N.E. 1100; Wakefield v. Wakefield, 256 Ill. 296, 100 N.E. 275, Ann. Cas. 1913E, 414; Davis v. Mather, 309 Ill. 284, 141 N.E. 209.

Under repeated decisions of this court, a borrowed statute will receive the same construction by this court which it had previously received by the courts of the state from which it was adopted. Many of the cases so holding are cited in Esterly v. Broadway Garage Co., 87 Mont. 64, 285 Pac. 172.

One other point should be noted.

In the annotations appearing under each section of the codes from sections 22-101 to 22-110, inclusive, it is stated that the section was first enacted in 1866 which was before the decision in the McMurphy case. However, an examination of chapter XXXVI of the Laws of 1866 will disclose that all of its provisions are quite different from the Illinois statutes than in effect and of course quite different from sections 22-101 to 22-110 as they were adopted in 1876 after Congress by the Act of March 2, 1867 (Vol. 14 U. S. Statutes at Large, page 426), had declared the act of 1866 a nullity.

The first time that Montana had statutes comparable to what are now sections 22-101 to 22-110 was in 1876 when they were adopted from Illinois. Aside from the point of adopting the construction placed upon the statute by Illinois this court in Dahlman v. Dahlman, 28 Mont. 373, 377, 72 Pac. 748, 750, indicated that it would reach the same conclusion when a widow elects to renounce the will. The court said: “This estate falls to her, not as heir, or by will of her husband, but by virtue of her marital right, and without regard to the law relating to the rights of heirs, or to any will made by the husband. ’ ’.

The same construction has been given by other courts under similar facts as for example, Kuhn v. Kunh, 125 Iowa 449, 451, 101 N.W.151, 152. That court said: That when a widow rénounces she .takes only that amount of the estate she is eh-titled to under “the Code * ' * '* as a matter of contract •and of right, and not by inheritance.”

In. In re. Estate of Noble, 194 Iowa 733, 739, 190 N.W. 511, 513, 26: A.L.R. 86, that court stated:

“If the decedent had died intestate, there can be no question that, under section 3379 • [I.C.A. section 636.32], the widow would been entitled to the entire estate above debts and expenses to the amount of $7,500 and one-half of the excess but, we view it, that statute has no application to the situation in this case. The decedent did not die' intestate. • The widow renounced the will and elected to take her distributive share, and has received from the entire estate of the testator her full share therein. This is all that she can obtain from the estate of a decedent who leaves a will s::= ® The decedent having died testate, her share in his estate, in the event she renounced the will, is limited to one-third share therein. This share is to be enlarged only in the single instance where a decedent dies intestate. It has no application to a situation where he dies leaving a will.”

And see Suiter v. Suiter, 323 Ill. 519, 522, 154 N.E. 337; Johnson v. Stringer, 158 Md. 315, 148 A. 447, 451; Second Nat. Bank c. Second Nat. Bank, 171 Md. 547, 190 A. 215, 111 A.L.R. 711; Cochran v. Garth, 163 Tenn. 59, 40 S.W. (2d) 1023, 76 A.L.R. 1413; 4 Page, Wills, pages 12, 74; 19 Tenn. Law Rev. 941; 2 Cinn. Law Rev. 310.

As pointed out in the authorities cited, when the respondent herein renounced the provisions made for her under the will, she did not thereby automatically place herself in a position whereby she was entitled to inherit the statutes of succession. This is true for the reasons pointed out above and also is demonstrated by the wording' of our statute of succession, the benefit of which provision is here sought by the respondent.

As above noted we need.not here determine what interest in the personal estate the widow is entitled to upon renouncing the will. Certainly she is not entitled to the whole thereof. It is noteworthy that the Illinois courts have limited her to a one-third interest therein. McMurphy v. Boyles, supra; White v. Dance, 53 111. 413; In re Taylor’s Will, 55 111. 252. These devisions so holding were rendered before we adopted the statute and from what has been said we will presume that the legislature intended to adopt such construction.

Our statute of succession (chapter 140, Laws of 1941, now R.C.M. 1947, section 91-403) pertinent here, provides: “When any person * * * dies without disposing of the estate hy will, it is succeeded to and must be distributed * * * in the following manner: * * *

“2. If the decedent leaves no issue, the whole of the estate shall go to the surviving husband or wife * * *” Emphasis supplied.

It is to be noted that in the instant appeal, the deceased did not die without disposing of his estate by will, but on the contrary, left very specific instructions with regard to the disposition of his estate, and nothing is contained in any statute which makes it impossible to follow his expressed wishes. Furthermore, in this connection, attention is particularly invited to the wording of the 1955 amendment, to section 22-107, supra, which now provides that in the event the widow elects, then she shall “take her dower in the lands and her share in the personal estate under the succession statutes.” Emphasis supplied. This clearly demonstrates that our Legislature has now clarified the situation with reference to the share that a renouncing widow may have and has put to rest the question of that amount following the renunciation of the benefits of a will.

In this state, section 91-312, R.C.M. 1947, provides:

“Legacies are due and deliverable at the expiration of one year after the testator’s decease. * *

Interest upon legacies is provided for by section 91-313, R.C.M. 1947, reading in part: “Legacies bear interest from the time when they are due and payable * * *”

The judgment and decree of the district court is reversed with instructions to enter judgment and decree determining that Franklin H. Roberts is entitled to his legacy in the sum of $20,000 and that Helen Roberts Truax is entitled to her legacy in the sum of $20,000, and after payment thereof the residue of the estate be distributed to the surviving widow; said judgment and decree to provide for interest at the statutory rate to the two legatees from November 9, 1955, to date of payment. Appellants to recover their costs on appeal.

On motion for rehearing the opinion promulgated herein on March 21, 1958, is hereby withdrawn and this opinion reaching the same conclusion is substantiated in lieu thereof.

The motion for rehearing is denied.

MR. CHIEF JUSTICE HARRISON, and MR. JUSTICES CASTLES and ANGSTMAN, concur.