Estate of Cunningham

Opinion,

Mr. Justice Mitchell:

Election, in the sense that applies to the present contention, means a choice between two courses of action, acquiescence by the widow in her husband’s disposition of his property, or disregard of it and assertion of the rights the law gives her. There is no third or mixed course. Her legal rights, which are paramount to the husband’s control, attach eo instanti that he dies, and there is no interval during which the will can slip in and work a conversion, and then stand aside to let in her intestate rights upon the converted estate. Conversion takes place by virtue of the will, but as to the widow so electing there is no will. She must make her choice, and it is will or no will. She has time to consider which she shall take, but the quality of the estate as to her rights is fixed at the moment of death, and she must take one or the other as they were then. The law does not permit her to say there is a will for conversion, and no will as to her share.

This was decided in Hoover v. Landis, 76 Pa. 354, but the learned auditor in the present case drew a distinction based on the fact that in Hoover’s will provision was made for his wife, while in Cunningham’s she was not named; but such a distinction is altogether untenable. Followed to its logical conclusion, it would result that a will which gave the widow one cent would require and support a valid election, while one which gave her nothing would not permit an election at all. The law does not sanction such an illusory distinction, and the argument which would support it is founded on wrong premises. The election which the widow is required to make is between rights, not between benefits. She has the right to abide by her husband’s disposition of his property, or the right to override it and claim under the intestate law. These rights are inconsistent, and cannot co-exist. She has always the choice which she will assert, but the choice is of one or the other, not both, and does not legally depend in any degree on the mention or omission of her in the will, or on the quantum of benefits she receives or renounces under it.

Neither the act of April 8, 1833, § 11, P. L. 249, nor the act of April 11,1848, § 11, P. L. 537, affects this question. The common-law rule was that a devise or bequest to a wife wits not in satisfaction or lieu of dower unless so expressed in the will: Co. Litt. 36 b. The courts of equity relaxed this rule by holding that where the provisions of the will would otherwise be materially disarranged, an intention to make the devise in lieu of dower would be implied. This gave rise to frequent litigation as to the inconsistency of clower with the provisions of wills, (see Webb v. Evans, 1 Binn. 565,) and the act of 1833, § 11, was meant to diminish this by establishing a fixed general rule. The act of 1848, supra, simply secures the widow her choice between the provision for her in the will, and her share under the intestate law of both personalty and realty.

As the widow’s rights are paramount to her husband’s power of disposition, she of course at her election could claim her statutory estate in the land itself, and in law it is this only to which she is entitled. But in equity, as she has acquiesced in the sale and made claim to the proceeds, she must now be held to have relinquished her dower, and the land to have passed to the purchaser discharged of her estate in it. It is an estoppel by election. But the fund is to be treated as still realty, for the purpose of determining the quantum of her interest or estate in it, and that is for life only. One half of the fund, therefore, must be properly secured under the direction of the court, and the interest paid to her during her life.

Whether her filing of the formal paper, electing to take against the will, was voluntary or under the stress of an order from the court, is entirely immaterial. Such a writing is proper for convenience and certainty of evidence, but is not otherwise important: Light v. Light, 21 Pa. 407; Bradfords v. Kents, 43 Pa. 474; Kennedy v. Johnston, 65 Pa. 451.

Decree reversed, and record remitted for distribution of the fund in accordance with this opinion.