Schaech v. Schaech ( 1948 )

Respondent moves for rehearing on the ground that the court was in error in holding that the election by the widow was based on the dower statutes and in holding that the period of time for election has elapsed. The facts are stated in the opinion and will not be restated here. The material part of sec. 233.14, Stats., is set out in the original opinion.

However, respondent is correct in her contention that the period for election under the statute had not yet expired. The court's attention was not called to sec. 233.15 (2), Stats., which provides:

"The period of time from the commencement to the final determination of any action brought to contest the validity of any will, jointure or pecuniary provision furnishing any such right of election, or to obtain a judicial interpretation of any such will, shall not constitute any part of the period within which such election may be made."

However, the election provided for in sec. 233.14, Stats., is not the only method by which an election may be made. It is well established that where a legatee makes a claim depending upon the will, the legatee thereby elects to accept the provisions of the will. Such an election is denominated an equitable election. In the case of Allen v. Boomer (1892),82 Wis. 364, 52 N.W. 426, the facts were that the husband under the will of his wife took only a life estate in her property. However, her will disposed of his property and gave him property belonging to her. He was therefore put to an election whether he would take under the will or reject the provision made for him therein. By propounding her will for probate, qualifying as an executor, and claiming under the will the residue of her estate to the exclusion of her heirs and his own, the husband elected to take under the will, and such election binds him by all its provisions which affect him or his property. This case, with a large collection of other cases, is cited in 156 A.L.R. 820, 823. The entire matter of election by a beneficiary to take by or against a will is dealt with in an annotation to be found in 166 A.L.R. beginning at p. 316.

Duden v. Duden (1921), 191 Iowa, 515, 516,182 N.W. 795, is a case upon its facts almost parallel to the case under consideration. The court said:

"Appellants contend that the record fails to show affirmatively that the appellee [widow] elected to accept the terms and provisions of the will of the testator. There is no merit in this contention. The bringing of this action and the allegations of the petition are sufficient, in and of themselves, to constitute such an election to take under the will. The appellee sets out the will as a part of her petition, alleging that the amount sought to be recovered is now due thereunder, and prays for a construction and interpretation of the said will in her behalf. We have heretofore held in Arnold v. Livingston,157 Iowa, 677, that: ``the widow may elect to accept the devise at any time, and that this fact can be shown by any competent evidence that satisfies the court that she did so elect before death.' . . . ``The election determines the choice, and this choice may be shown by expressed words of election and, as in this case, the actual taking of the thing bequeathed, or it may be shown in any other manner that clearly makes manifest that an election has been made.'"

To the same general effect see the following cases: Schubertv. Barnholdt (1916), 177 Iowa, 232, 158 N.W. 662; Davis v.Badlam (1896), 165 Mass. 248, 43 N.E. 91; Matter of James (1917), 221 N.Y. 242, 116 N.E. 1010.

In this case, on March 18, 1947, the respondent, not satisfied with the construction of the will already prayed for by the executor and in opposition to such petition and to appellants' petition, filed her cross petition in which she prayed not merely for construction of the will but specifically "for an order and judgment determining what property belongs to this estate and to whom deceased's property is to be distributed." She asserted her claims under the will of her deceased husband and by so doing, according to the great weight of authorities, elected to take under the will. She, in effect, contended that she could take under the provisions of the will favorable to her and reject and disregard the balance. The trial court held in accordance with her contention. The manner in which the court distributed the property is stated in the original opinion and need not be repeated here.

It therefore appears that while the wrong ground was assigned for upholding the contention that the widow had elected to take under the will, that under the facts of the case it must be held that the widow, by what she did in the matters relating to the probate of her husband's estate, so elected.

Motion for rehearing denied, with $25 costs in one case.

FRITZ J., dissents.