Jones v. Jones

COLLINS, J.

We are again called upon to construe the provisions of G. S. 1894, § 4470. John P. Jones died testate, in 1889, the owner of a farm of 160 acres, of which 80 acres was his statutory homestead. His wife survived him, as did five children. The latter had attained their majority long prior to their father’s decease. The will was duly probated in 1890, and, in accordance with its terms, one-half of all of the decedent’s property was assigned and decreed unto the widow for the term of her natural life, with the remainder over to a son, Henry Jones; while the other half, except the sum of $600, reserved for certain specified legacies to the other children, was assigned and set over to said son Henry absolutely. Another' son (Hugh) was nominated in said will as executor, and he was duly appointed as such in 1890, and thereafter duly qualified, and has ever since been acting in that capacity.

The widow died in 1893. The estate has never been settled, and in 1894 the children, other than Henry, petitioned the probate court for the setting apart of the 80 acres, as the homestead of-the deceased, to the five children before mentioned, and for their use. The petition was granted in the probate court, but on appeal the order was reversed by the district court.

On the facts this case does not materially differ from that of Radl v. Radl, 72 Minn. 81, 75 N. W. 111, and is governed by it. In each case there was the last will and testament of a husband, in which provision was made for the wife, if she should survive the testator, in lieu of the statutory rights; and there were also children. In neither case did the wife assent to the provisions of the will during the lifetime of the husband. In each case the will was duly probated while the widow was living, and presumably she accepted its terms. In the Radi case the homestead was devised to a son in fee, free from all claims of the widow, and when the will was probated she executed, acknowledged and filed in the probate court her written assent to all of its terms and conditions, relinquishing all claims and rights in and to the estate, except as to the part devised to her. One or two years after this she brought an action against the son to eject him from the homestead, claiming that she could not lawfully assent to the terms of the will after her husband’s decease.

In the present case an undivided half of all property, less the amount of certain legacies, and including the homestead, was bequeathed and devised to the son Henry, while the other half was bequeathed and devised to the widow during her natural life, with remainder over to Henry. The widow did not assent in writing to 'the terms and conditions of the will, but it was probated February 1, 1890. She lived until January 31, 1893, or for more than two years after the expiration of the six-months period fixed in section 4472, within which she was required by a written instrument, filed in the probate court, to renounce and refuse to accept the provisions of the will, or be deemed to have elected to take thereunder, and in accordance with its terms and conditions. She failed to file the instrument, and upon her death all of the children save Henry filed the petition just mentioned, claiming that it should be granted because their mother never formally assented to the testamentary disposition of the estate made by her husband.

What was said in the opinion filed in the Radi case in reference to a proper construction of sections 4470-4472, is pertinent here, and need not be repeated; and, changing the language a trifle, so that it may fit slightly different facts, the remainder of that opinion is'in point. We have here the two essentials there mentioned: First, á testamentary disposition of the homestead; and, second, a failure on the part of the surviving wife to renounce, and a refusal to accept, the terms and conditions of the will within the statutory period. This failure was an election on the widow’s part to take under the will, and to accept its terms and conditions in lieu of the provisions made for her by statute. When the six months had expired, she having omitted to renounce and to refuse to accept under the will, her right of election terminated. It had gone; and certainly the children who survived her can have no greater rights than she had. They cannot revive this right.

> We have the same argument here as in the Radi case, — that with this construction of the statute it is optional with the surviving husband or wife to deprive the children of their remainder in the homestead, — and the same reply can be made to it. The survivor has the power to deprive the children of this remainder by assenting to the will in writing, and it is of no importance to them how it is done, if this power absolutely exists. It is the act which affects them, and it is therefore immaterial whether it is performed by some affirmative action, like written assent, or is negatively brought about by reason of a failure to renounce and a refusal to accept under the will. The petitioners had no interest in the homestead to be set apart.

Order affirmed.