47 521. Effect of renouncing life estate-Acceleration of remainderWhere a widow is given a life estate and she elects to take against the will the remainders are accelerated and vest in enjoyment immediately, as if she had died, unless a contrary intention is plainly manifested by the will or such acceleration would work an injustice to other beneficiaries. According to the weight of authority it is immaterial that the remainders are contingent. Contribution may be enforced between remaindermen to equalize their losses resulting from the election. The general rule is that remainders after a life estate to a widow are accelerated by her waiver of the life estate, but this rule does not apply if it is obvious that the testator did not intend such result." 48 In case of a bequest of a balance of an estate to residuary legatees they will take the fund made available by the election of the widow to take against the will, in preference to acceleration of the remainder." Where testator's wife, to whom a life use is bequeathed, elects to take under the statute, and her election results to the disadvantage of legatees other than the remaindermen, the doctrine of acceleration of remainders does not apply, as it would if all legatees were equally affected by the election, and the fund will be sequestered and the proceeds during the life of the widow applied to the benefit of the disappointed legatees, including residuary legatees. Where a widow waived the life interest in a fund given her by a will, and in lieu thereof took one-half of the estate, it was held that the income of such fund should be applied to make up the loss of the legatees, whose shares were thereby decreased; it appearing that such course would most nearly carry out the purpose of the testator.51 Devises or bequests, subordinate to a life estate in a widow and contingent upon her death, or payment of which is postponed until then, become presently payable upon her election to take under the statutes of descent and distribution. In its effect on all claims under the will her election is equivalent to her death.52 50 522. Contingent remainders-The rule that a contingent remainder requires a precedent estate to support it does not apply in case of an election of a widow to take under the statute.53 47 Meek v. Trotter, 133 Tenn. 145, 180 S. W. 176; Davis v. Hilliard, 129 Md. 348, 99 Atl. 420; Sherman v. Flack, 283 Ill. 457, 119 N. E. 293; Rench v. Rench, 184 Iowa 1372, 169 N. W. 667; American Nat. Bank v. Chapin (Va.) 107 S. E. 636; 11 A. & E. Ency. of Law (2 ed.) 118; 40 Cyc. 1992; 28 R. C. L. 333; 18 L. R. A. (N. S.) 272; L. R. A. 1915A, 671; Ann. Cas. 1913E, 416; Ann. Cas. 1918C, 412; 5 A. L. R. 1632; 17 A. L. R. 314; 32 Harv. L. Rev. 861. 48 Cotton v. Fletcher, 77 N. H. 216, 90 Atl. 510; In re Disston's Estate, 257 Pa. 537, 101 Atl. 804; Adams v. Legroo, 111 Me. 302, 89 Atl. 63; Swan v. Austell, 253 Fed. 807. See 5 A. L. R. 1629. 49 Crocker v. Crocker, 230 Mass. 478, 120 N. E. 110. 50 Sellick v. Sellick, 207 Mich. 194, 173 N. W. 609. See § 520; 5 A. L. R. 1634. 51 Cotton v. Fletcher, 77 N. H. 216, 90 Atl. 510. 52 In re Disston's Estate, 257 Pa. 537, 101 Atl. 804. 53 Wakefield v. Wakefield, 256 Ill. 296, 100 N. E. 275. 523. Conflict of laws-The surviving spouse of a non-resident testator may, though also a non-resident, renounce the will and claim as statutory heir. Such a renunciation, when properly made, will estop the survivor from thereafter claiming under the will in this state or elsewhere. The renunciation contemplated by G. S. 1913, § 7239, must be made in the probate court of this state in which the foreign will is proved, or, if already proved elsewhere, in which it is allowed and filed; and the existence or non-existence in other states of statutes relating to election can be material only upon a question of common-law estoppel.** Where a will covers lands lying in different states an election made at the domicil applies to lands in other states.55 A resident of Iowa made his will, in which, after giving to his wife certain real and personal property in that state, he devised and bequeathed the residue of his estate in equal shares to his wife and his son. The son died before his father. The testator, at the time of his death, had no lineal descendants. His widow filed in the Iowa courts an election to accept the provisions of the will. The testator owned real estate in Minnesota which was a part of the residue so devised. Held, that the election in Iowa of the widow to accept the provisions of the will estops her from taking under the statutes of this state property of the testator as to which, by reason of the lapsing of the devise to the son, he died intestate.56 An election made by a probate court in another state under a statute of that state for an insane widow has been held conclusive upon the courts of this state with reference to lands in this state." A surviving spouse cannot claim under a will in one state and against it in another.58 A probate court of this state with jurisdiction to administer upon the real estate here of a non-resident decedent has authority to make an election for an insane widow of such decedent if no election has already been made at the domicil of the decedent." 54 Boeing v. Owsley, 122 Minn. 190, 142 N. W. 129; Mechling v. McAllister, 135 Minn. 357, 160 N. W. 1016. See Ann. Cas. 1914A, 446. 55 Washburn V. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; Fairchild v. Marshall, 42 Minn. 14, 43 N. W. 563; Mechling v. McAllister, 135 Minn. 357, 160 N. W. 1016; Boeing v. Owsley, 122 Minn. 190, 201, 142 N. W. 129; Mettler v. Warner, 98 Neb. 111, 152 N. W. 327. See Stigg v. Atkinson, 144 Mass. 564, 12 N. E. 354; Ann. Cas. 1914A, 446; 32 Harv. L. Rev. 288. 56 Mechling v. McAllister, 135 Minn. 357, 160 N. W. 1016. See, for a criticism of this case, 30 Harv. L. Rev. 649. 57 Washburn V. Van Steenwyk, 32 Minn. 336, 20 N. W. 324; Fairchild v. Where, after making his will, a Marshall, 42 Minn. 14, 43 N. W. 563. See 58 Washburn v. Van Steenwyk, 32 Minn. 336, 357, 20 N. W. 336; Boeing v. Owsley, 122 Minn. 190, 201, 142 N. W. 129; Lawrence's Appeal, 49 Conn. 411; Wood v. Conqueror Trust Co., 265 Mo. 511, 178 S. W. 201; Martin v. Battey, 87 Kan. 582, 125 Pac. 88; L. R. A. 1915F, 680; Ann. Cas. 1914A, 446. See Evans v. Heilman, 37 S. D. 499, 159 N. W. 55 (claim of widow renouncing will in another state held under a deed and not under the will); Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354. 59 Washburn V. Van Steenwyk, 32 Minn. 336, 354, 20 N. W. 324. testator changed his domicil, it was held that the law of the place where he made his will governed in determining whether he intended to put his wife to an election.60 PARTICULAR WILLS CONSTRUED 524. Disinheriting subsequent-born child-After certain specific legacies and devises a will gave all the residue to the wife of the testator, with this provision: "And her rights under this residuary provision shall not be affected or changed by the birth of any child of mine, if any shall be born to me before or after my decease." Held, to manifest an intention not to provide for a child born after the execution of the will.81 525. Life estate to widow with remainder in fee to children-A will held to vest a life estate in the widow of the testator and a remainder in fee in his children,62 * * * 526. Trust for support of widow and children-Suspension of power of sale until youngest child became of age-A testator, who died leaving five minor children, devised his real estate in trust to collect the rents and profits, and apply them to the support of his widow, and the support and education of his children, with power in the trustee to sell a designated part, the will containing these clauses: "It is my desire that no division of the balance of my real estate shall be made amongst my children until the youngest child shall become of lawful age. When my youngest child shall become of lawful age, all the rest and residue of my real estate and personal property, wheresoever situated, shall be equally divided between my said wife and our children, share and share alike," etc. Held, that by the words "youngest child," is meant not the youngest child which shall live to majority, but the youngest child living when the will took effect at the death of the testator; that the suspension of the power of alienation depended on the minority of such child, and would terminate on such child coming of age, or at his death before coming of age, and that such suspension is valid.63 527. Mistake in description of lots disregarded-A testator devised to his widow "the house where we now live, with the grounds connected therewith, being lots 1, 2, and 3, and two-thirds of lot 4, in block 225, situate at the junction of Eighth and Helen streets, in the city of Minneapolis." The lots mentioned were not situated at the junction 60 Staigg v. Atkinson, 144 Mass. 564, 12 N. E. 354. See § 158. 01 Prentiss v. Prentiss, 14 Minn. 18(5). 62 Chemedlin v. Prince, 15 Minn. 331 63 Simpson v. Cook, 24 Minn. 180; Officer v. Simpson, 27 Minn. 147, 6 N. W. 488. of Eighth and Helen streets, but at the junction of Eighth and Minnetonka streets. Those lots would take only a part of the house, which was situated on lots 4 and 5, at the junction of Eighth and Helen streets. The testator did not own lot 1, and had conveyed (subject to a condition of forfeiture, as is claimed,) the one-third of lot 2 next lot 1, but did own lots 3, 4, and 5, and the two-thirds of lot 2 next lot 3. Held, that the description by the numbers of the lots was a mistake, and must be rejected." 528. Trust in executor with power of sale after certain period-Meaning of "heirs"-A will gave a devise to the executor in trust with a power of sale five years after the death of the testatrix, unless her heirs should agree to postpone the sale for a longer period. Held, that the word "heirs" meant all the beneficiaries of the trust.65 · 529. Trust in executors for benefit of son-in-law-Title held to vest in him under statute of uses-A will contained a devise to executors in trust to permit the testator's son-in-law "to use and occupy the same for and during the term of his natural life, and after his decease in trust" for another. Held, that the legal estate in the land for his life was vested in the son-in-law, by the statute of uses, and that his interest was assignable, and subject to be sold for his debts." 530. Gift to widow of statutory interest-Widow held entitled to share in lapsed devise-Election-On November 5, 1879, J. executed his last will and testament, bearing date of that day. The first clause provided as follows: "First, I give and bequeath to my beloved wife, Elizabeth S., in addition to the amount now allowed her by law out of my estate, and which it is my will she shall have on my decease, my gold watch and chain." By subsequent clauses he devised and bequeathed all the rest, residue, and remainder of his estate, real and personal, in certain specific shares and portions, to his four children. The testator died March 16, 1883, leaving surviving him his widow and three of the children named in the will, the fourth having died without issue in the lifetime of the testator. Held, first, that, under the will, the widow was entitled, in addition to the watch and chain, to the same share of the estate as she would have been entitled to under the law in force at the date of the will, had the testator died wholly intestate; second, that in addition thereto the widow was entitled, under the statutes of descent and distribution, to one-third of the devise and legacy which lapsed by reason of the death of the devisee and legatee without issue during the lifetime of the testator."7 64 Butler v. Trustees, 27 Minn. 355, 7 N. W. 363. 35 Greenwood v. Murray, 28 Minn. 120, 9 N. W. 629. 67 66 Farmers Nat. Bank v. Moran, 30 Minn. 165, 14 N. W. 805. 67 Johnson v. Johnson, 32 Minn. 513, 21 N. W. 725. See § 515. 531. Residuary gift to children-Investment of funds for income until they became of age-A residuary gift to children with direction. to executors to invest it in bonds, and to expend so much of the income as might be necessary for the maintenance and benefit of the children during their minority, as the necessities of each might require, and then pay over to each his share on his attaining the age of twentyone years.68 532. Gift to wife in lieu of statutory interest-Election-A testator provided for his wife as follows: "I direct my executors to bear constantly in mind the wants of my wife, and to set aside, use and expend whatever moneys may be necessary, consistently with her condition, to provide for her comfort and physical health; and I place no limit. upon the sums which they may expend for the purposes indicated." The testator then created certain trusts, founded certain charities, made many bequests to his children and relatives, gave his executors power to manage and carry on his business until his estate should be settled, and finally disposed of the residue of his estate, one-half to his two daughters and one-half to his brothers. Held, that the will called for an election by the widow.69 533. Residuary gift to wife-A gift to a wife of an undivided one-third of the residue "of all my estate and property," where the testator had a qualified, partial or undivided interest, construed." 534. Life estate to wife with remainder to children-Provision for support of children-Power of sale-A testator by his will devised and bequeathed all his real and personal property to his wife for life, and provided that at her death any and all of the property and estate so granted, "or any part of the same then left by her," should be divided among his children. The will also contained a provision, as follows: "I make this a condition that my said wife shall, out and from said property left her, provide for the maintenance and education of my children." A power to sell and convert the property is also given to the executors. Held, that upon his death a life-estate in the realty vested in the wife and a remainder in fee in the children, and in like manner similar interests were created in the personalty, and in case of sales the devisees or legatees would take similar interests in the proceeds. Held, also, that by the terms of the will an implied power of disposition is given to the widow of so much of the capital fund or corpus of the estate as may be reasonably necessary for her own support and the maintenance and education of the children after first applying the income thereto; that the provision for the widow is made in consideration that 68 Huntsman v. Hooper, 32 Minn. 163, 20 N. W. 127. 69 Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324. 70 In re Gotzian's Estate, 34 Minn. 159, 24 N. W. 920. |