Winans v. Proctor

Wiest, J.

The judgment in the circuit court should be affirmed. The estate consisted mainly of real estate.

The widow elected to take “the same share or part of the said estate left by my late husband, * * * as provided by law in case he had died intestate.” This did not destroy the will or render any part of the estate devised thereby intestate. Kilgore v. Kilgore, 319 Ill. 298 (149 N. E. 754); Fife v. Fife, 320 Ill. 270 (150 N. E. 630); Suiter v. Suiter, 323 Ill. 519 (154 N. E. 337). See, also, In re Povey’s Estate, 271 Mich. 627, 631 (99 A. L. R. 1183). Had there been no will, the widow, under the circumstances, would take the whole estate, but there being a will and an election by the widow not to take thereunder but have her share as provided by law in case of intestacy then the statute quoted by my brother in this instance operates as one of limitation by providing:

“That where the effect of such election on the part of the widow under this subdivision shall be to enable such widow to take all of the real estate of the husband [as in this instance], then her election shall be limited so as to enable her to take a one-half interest therein absolutely. . The other one-half interest in said real estate shall go to her subject to any devise or legacy which may be provided by the husband in his last will and testament.” 3 Comp. Laws 1929, § 13085, subd. (c), as amended by Act No. 242, Pub. Acts 1931 (Comp. Laws Supp. 1935, § 13085, subd. [c]; Stat. Ann. § 26.234, subd. [c]).

Testator gave his wife one-half of the proceeds from the sale of his estate, whether real, personal, or mixed, and the other half he devised in equal parts to Myrtle Pfeifle and Roy H. Proctor.

Under the mentioned statute the widow, by her election, was entitled to one-half of the estate, and the other half, being devised to others by the will, was not subject to her participation. If there had been property not devised, then the widow would take. Subjecting the right of the widow in the other half “to any devise or legacy which may be provided by the husband in his last will and testament” does not permit subjecting such devises and legacies to an interest in the widow. The language “subject to” renders the widow’s right inferior to that of the devisees. If the devise is of all the estate above one-half thereof, then one whose right to take is subject thereto can take no part thereof.

The judgment in the circuit court is affirmed, with costs to appellees.

Btjtzel, C. J., and Sharpe, Chandler, and North, JJ., concurred with Wiest, J.