
    Millikin v. Welliver. Crecraft v. Smith.
    A testator, after directing that liis debts and funeral expenses be paid, gave all the residue of his estate, both real and personal, to his wife during her life, she to have full possession, management and control of the same, with the privilege of disposing of all or any of the personal property for her use, together with the proceeds of the real estate.
    The estate consisted of lands, fanning utensils, household goods, live stock and money. The residuary clause is as follows: “The residue of my estate is to be distributed to the heirs on my side of the house in such proportions as she may direct by will or otherwise.”
    No personal representative was appointed until after the death of the widow. She took possession of the personal property, paid the debts and funeral expenses, and deposited the balance of the money in bank in her own name, and died within five months after her husband’s death, without making her election as required by statute to take under the will, and without having disposed of any of the personal property or money, and without distributing any of said estate by will or otherwise.
    Neither the testator nor his wife left any children or their legal representatives. Bach left brothers and sisters of the whole blood, and their legal representatives.
    
      Held: 1. The right of a widow to elect to take the provision made for her in the will of her husband, is a right to be exercised by her in person. If she dies without having made her election, those who claim under her can only claim so muck, of her husband’s personal estate as she was entitled to under the law.
    2. In order to bar a widow of her right to dower and to such share of the personal estate of her husband as if he had died intestate leaving children, her election must be made either by matter of record in the proper court as required by statute, or actually and in fact under such circumstances as -would create against her an e'sloppel of her right to claim under the law.
    3. Where it does not appear that a widow has acted with a full knowledge of the condition of her husband’s estate and of her rights under the will and under the law, her acts in paying the debts of the husband out of his money, receiving and holding the balance, and having possession and control of the real and personal estate for five months after her husband’s death, do not constitute such an election, in fact, to take under the will, as estops her from claiming, under the law, within the time allowed.
    4. If the husband devise his real estate to his wife for life, with remainder to his heirs, and the wife elects to take her dower, or fails to make her election, the remainder vests in fee in the heirs, subject to the dower estate of the wife.
    5. Where the residue of an estate is, by will, directed to be distributed among testator’s heirs, in such portions as his wife may direct by will or otherwise, and she dies without having exercised the power conferred upon her, each of the heirs of the testator, or his legal represenative, takes an equal share under the will.
    Error to tbo District Court of Butler County.
    Tbo first above ease relates to tbe rights of tbo parties in the, personal estate of John D. Smith, deceased. Tbe second cast: relates to tbe rights of tbe parties to tbe real estate.
    
    Tbe facts relating to each will be stated as if there was but one case. Tbe first case was submitted in tbe trial court upon an agreed statement of facts, which are substantially as follows:
    Tbe agreed case shows:—That John D. Smith died April 30, 1877, testate; bis will was probated May 10, 1877; John D. Smith left no issue, but left Elizabeth Smith, bis lawful wife, to whom be was married in 1839. Elizabeth Smith (tbe widow) died August 1,1877, intestate, and without issue. She never attempted to divide or distribute tbe real or personal estate of John D. Smith in any way. William B. Millikin is tbe administrator of Elizabeth Smith, and Enoch D. Crecraft and the other plaintiffs are her legal heirs and distributees. P. J. 13. Welliver is the administrator of John D. Smith, and Joseph Smith and the other defendants are the brothers and sisters (and representatives of a deceased brother and sister) of John D. Smith.
    No administration was taken out on John D. Smith’s estate, until August 10, 1877 (after Elizabeth’s death), when Welliver was appointed his administrator with the will annexed. Millikin was appointed -administrator of Elizabeth Smith, August 22, 1877. The debts of John D. Smith and his funeral expenses were all paid by Elizabeth Smith out of his estate.' N o year’s support was set off to her, but $500 would have been a reasonable sum for a year’s support if she was entitled to have the same set off.
    Besides paying his debts and funeral expenses, John D. Smith left $8,750 in money, which, at his death, was taken possession of by Elizabeth, his widow, and by her, on May 10, 1877, deposited to her individual credit, in Second National Bank of Hamilton, where it remained at her death. It is agreed that $650 of said sum was her separate estate (being referred to in the will), and it is withdrawn from controversy, leaving balance of $8,100 in bank in controversy.
    The balance of John D. Smith’s personal estate, consisting of horses, cattle, hogs, farming utensils, household furniture, grain, &c., was, at John D. Smith’s death, taken possession of by the widow, Elizabeth, and retained by her until her death.
    Welliver, when appointed administrator of John D. Smith, took possession of the same, and had it appraised and sold as the property of John D. Smith, the entire proceeds being $2,859.89, which was the reasonable value thereof, and now in the hands of said Welliver as administrator. Said appraisement and sale was made against the protest of William B. Millikin, administrator of Elizabeth Smith.
    ' Of the said grain sold was 715 bushels of corn, sold for $250.25, which was planted after the death of John D. Smith, on the real estate owned by him and devised in his will, by a tenant to whom, by verbal agreement before his death, John I). Smith had rented the farm for the year 1877 on the shares. Tlie plowing was done by the tenant before John D. Smith’s death.
    The above are all the facts material to the controversy between the above named parties, and upon the above facts, it is, by agreement of all the above parties, submitted to the court to decide the following questions, and to enter judgment accordingly :—
    I. Is P. J. 13. Welliver, administrator with the will annexed, of John D. Smith, deceased, or is William-B. Millikin, administrator of Elizabeth Smith, deceased, entitled to have possession of said personal estate, and to administer upon the same ?
    II. Is William B. Millikin, administrator of Elizabeth Smith, entitled to have paid to him out of said estate the sum of $500 for said year’s support of said Elizabeth Smith ?
    III. In what manner and proportion and to whom ought said money, proceeds of sale of personal property and other personal estate, be distributed and paid after the expenses of administration have been first paid, and after payment of taxes ?
    The will of John D. Smith, dated April 24, 1875, is as follows:
    “I, JohnD. Smith, of Reily township, Butler county, Ohio, make and publish this my last will and testament as follows, to wit: I direct that my funeral expenses, and all just debts be paid as soon after my decease as possible. The residue of my estate, both real and personal, that I may possess at my decease, I give and bequeath -to my beloved wife, Elizabeth Smith, during her lifetime; she to have full possession, management and control of the same, with the privilege of disposing of any or all of the personal property for her use, together with all the proceeds of the real estate; she to have the privilege of disjmsing of six hundred and fifty dollars at her death to whomsoever slie may see fit (being the amount received from her father’s estate); the residue of my estate is to be distributed to the heirs of my side of the house in such portions as she may direct by will or otherwise.
    “In witness whereof, I, John D. Smith, the- testator, have hereunto set my hand and seal this 24th day of April, a. d. 1875.
    “ John D. X Smith. [Seal.]
    
      “ Signed, sealed and acknowledged in the presence of us, who subscribe our names as witnesses in the presence of the testator and in the presence of each other.
    “ Henry A. Cubberley.
    “ Joseph "Welsh.”
    The second case, relating to the real estate, was submitted on an agreed statement of facts, showing also that John D. Smith, at his death, was seized of certain parcels of real estate, all of which, except thirty-live acres, came not by descent, devise or deed of gift, and that Elizabeth Smith was married to him in 1839, and continued his lawful wife until his death.
    The court of common pleas .adjudged:
    1st. That the personal estate should be administered and distributed by the personal representative of John D. Smith.
    2d. That he should pay to the personal representative of the widow $500, which, it was agreed, is a reasonable allowance, for her year’s support.
    3d. That he should, after paying to the administrator of the widow said sum of $650, and taxes, &c., distribute the residue to the brothers and sisters, and their legal representatives, of John D. Smith.
    4th. That the real estate vests in said brothers and sisters and their legal representatives.
    The district court affirmed these judgments, except as to the amount allowed for the year’s support to the widow.
    
      Thomas Millikin, for plaintiff in error.
    
      Moore & Moore, for defendant in error.
   Johnson, J.

Much of the argument of counsel as well as the judgment of the courts below, is on the assumption that Elizabeth Smith, the widow, took under the will of her husband, John D. Smith. This necessarily involves a construction of the will, in order to determine the widow’s rights thereunder, and the rights of her representatives.

If, however, the widow did not take under the will, expressly as prescribed by the statute, or impliedly by such acts as would have estopped her from denying such election, then she takes under the law. If the latter is the case, it becomes immaterial to inquire what the will would have given her, had she taken under it. If she did not take under the will, the law fixes her rights.

If any provision is made by will for a widow of the testator, it is the duty of the probate court, to forthwith, after the probate of the will, issue a citation to the widow, to appear and make her election, whether she will take such provision, or be endowed of the lands of her husband. This election is to be made within one year from the date of service of the citation upon her. It must be made in person, and in the probate court, except where a commission is authorized to take such election. It is to be made after ah explanation of her rights under the will, and under the law in the event of her refusal, and is to be made a matter of record.

If the widow shall fail to made such election, she shall retain her dower, and such share of the personal estate of her husband as she would be entitled to by law, in case her husband had died intestate leaving children.” To determine the matters in controversy, we must first ascertain whether Elizabeth Smith took under the will, or under the law.

That she was not cited before the probate court, nor her election made a matter of record, is conceded. She died before the time had expired in which she could have elected.

She alone could elect. It is a personal right. Neither her administrator nor her heirs could make it.

But it is claimed that, although she did not elect as prescribed by statute, yet she in fact did so elect, and that her rights depend on the terms of the will. This claim is that the facts agreed on show such an actual election as would have estopped her, had she lived, from claiming under the law.

The facts relied on for this purpose are, that during the time she survived her husband, some five months, no administrator was appointed, nor was any claim made for dower ; that she paid the debts and funeral expenses ; that there was left some $8,000 in cash, which she deposited in bank in her own name, and that she took and retained possession of the personal property of her husband, consisting of stock on the farm, farming utensils and other chattels. She did not attempt, to convert any of this property to her own use, nor place it beyond the reach of an administrator of her husband’s estate, when one should be appointed. Indeed, every dollar of the assets, as appears by the agreed statement, which remained after payment of debts and funeral expenses, remained at her death within the reach of the representatives of her husband. The will gave her a power of sale of the personal property, and the rights to the proceeds of the farm, and an absolute disposal of $650, the amount received from her father’s estate, yet she exercised none of these rights.

The acts relied on are by no means conclusive. They are not inconsistent with an intention to elect, when cited, to take under the law. They are such acts as would preserve the estate intact for that purpose. This may have been the intention of the widow. •

While they tend to prove that she was acting under the will, they are not so inconsistent with her rights under the law as to estoja her from claiming under the law, especially when only a few months had elapsed since her husband’s death, and there was no personal representative of the estate. It can hardly be claimed that, had she been cited to appear before the court to make her election, after doing these acts, she would have been denied her election.

In order that acts of a widow shall be regarded as equivalent to an election to waive dower, it is essential that she act with a full knowledge of all the circumstances and of her rights, and it must appear that she intended, by her acts, to elect to take the provision which the will gave her. These acts must be plain and unequivocal, and be done with a full knowledge of her rights and the condition of the estate. A mere acquiescence, without a deliberate and intelligent choice, will not be .an election. 1 Lead. Eq. Cas. title Election Anderson's Appeal, 36 Penn St. 476, 496; Bradford v. Kent, 43 Penn. St. 474; English v. English, 5 Green Ch. 504; O'Driscoll v. Koger, 2 Desaus. 295 ; Wake v. Wake, 1 Vesey, Jr. 335 ; Reynard v. Spence, 4 Beav. 103; Tooke v. Hardeman, 7 Geo. 20 ; Dixon v. McCue, 14 Gratt. 540.

It is believed no case can be found where the facts are held sufficient to amount to an election to waive the widow’s rights under the law, unless they are of such a marked character and of such long duration as will clearly and distinctly evince' a purpose to take the provisions of the will, and to operate as an effectual equitable bar to dower.

Thus, where real estate was devised to a widow for life, remainder in fee to her sons, and she in fact took under the will and occupied the premises for more than sixteen yearns, .-she was estopped to deny her election. Thompson v. Hoop, 6 Ohio St. 480.

So in Bradford v. Kent, 43 Penn. St. 474, it was held that where a widow, with full knowledge of the value and character of her husband’s estate, receives the provision made for her in his will, she cannot, after seventeen years, claim that she did not intend to relinquish her dower.

In Stilley v. Folger, 14 Ohio, 610, it was held that the act of taking possession of the prouerty within the time limited for making the election was not an election under the will.. Indeed, it is said in that case, that the only mode of proving an election is by the record, unless the record is lost or destroyed. This decision seems at variance with . Thompson v. Hoop, supra, and numerous other cases, where an estoppel in pais was proven and held effectual; but, as applied to the facts of the case then before the court, where the acts relied on to create an estoppel were within the time limited by law for an election before the court, and when such acts did not amount to an actual conversion of the property, there is no inconsistency. In all the cases in which it is held that an implied election bars dower, the acts relied on are long continued, unequivocal, and inconsistent with the claim for dower. Reed v. Dickerman, 12 Pick. 146 ; Delay v. Venal, 1 Met. 67; Upshaw v. Upshaw, 2 Hen. & Munf. 381; Ambler v. Norton, 4 Hen. & Munf. 28; Clay v. Hart, 7 Dana, 1; Craig v. Walthall, 14 Gratt. 518.

We conclude, therefore, that the acts relied on as an election are not such as -would have estopped her, had she oeen cited as the law requires, from making her election in court after a full explanation of her rights under the will. These acts were within the time the statute gave her to choose, and they are not such as in equity creates an estoppel.

The widow must, therefore, be deemed to have failed to make her election to take under the will. In such a case, the statute says she shall retain her dower and such share of the personal estate of her husband as she would be entitled to had her husband died intestate, leaving children.

The judgments of the courts below must, therefore, be reversed, and a judgment rendered in accordance with the foregoing decision.

II. As to the real estate :

The failure of the widow to take, under the will, left the real estate to vest in the devisees of the estate in remainder, subject to the widow’s dower. Her death terminated her right to have dower assigned, or to claim any share of the accruing rents and profits. The will directs that the residue of the estate be distributed to the testator’s heirs in such ■portions as his wife may direct by will or otherwise. She 'died without exercising this power. Having failed to make such distribution, the devise takes effect in favor of each of the heirs or his legal representatives in equal shares. As the real estate vested in the residuary devisees, the rents and profits accruing after the testator’s death vest in them also. This settles the right to the proceeds of the sale of the crop of corn. As between the personal and legal representatives of John D. Smith, it belongs to the latter, but as the plaintiffs in error have no interest in this claim, the judgment of the court below in regard to this item is left undisturbed.

These heirs are the defendants in error in the second above case. This judgment is therefore affirmed.  