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Where a provision is made for the testator's widow which is inconsistent with her right to claim dower, although the will does not state that the provision is made in lieu of dower, she will be required to elect.48 Thus, a devise of the whole property to the wife for life upon the payment of a certain rent per acre, with directions to keep the house in repair and not to alien except to the remainderman; the gift of an annuity and the use of the homestead;48 a trust to permit another to use, oc cupy, and enjoy the estate for her life;49 a direction to trustees to carry on the business of the farm, or to let, for the benefit of his daughter;50 a specific devise of a particular piece of realty;51 and a power to trustees to

47

latter the scheme of the will
would be defeated, for that en-
trusts control and management
of the entire estate to trustees,
while the right to dower car-
ries with it the control and man-
agement of one-third of the realty
during the life of the dowager.-
Matter of Gorden, 172 N. Y. 25,
92 Am. St. Rep. 689, 64 N. E. 753.

46 Dickson v. Robinson, Jacob
503; Ellis v. Lewis, 3 Hare 310;
Adsit v. Adsit, 2 Johns. Ch. 448;
Smith v. Knishkern, 4 Johns. Ch.
9: Arnold v. Kempstead, 2 Eden
237; Herbert v. Wren, 7 Cranch
(U. S.) 370, 3 L. Ed. 374; Warren
V. Morris, 4 Del. Ch. 289; Snyder
V. Miller, 67 Iowa 261, 25 N. W.
240; Shaw's Devisees v. Shaw's
Admr., 2 Dana (32 Ky.) 342;
Young v. Boyd, 64 How. Pr.
(N. Y.) 213; In re Zahrt, 94 N. Y.
605; Shotwell v. Sedham's Heirs,
3 Ohio 1; Gordon v. Stevens, 2

Hill Eq. (S. C.) 46, 48, 27 Am. Dec. 445; Hall v. Hall, 2 McCord Eq. (S. C.) 269, 280; Van Steenwyck v. Washburn, 59 Wis. 483, 48 Am. Rep. 532, 17 N. W. 289.

47 Birmingham V. Kirwan, 2 Schoales & L. 444. See, also, French v. Davies, 2 Ves. Jun. 576; Strahan v. Sutton, 3 Ves. Jun. 249.

It is held that a devise of the whole estate for life is not inconsistent with the widow's claim to dower.-Potter v. Worley, 57 Iowa 66, 7 N. W. 685, 10 N. W. 298. See, also, Blair v. Wilson, 57 Iowa 177, 10 N. W. 327.

48 Endicott v. Endicott, 41 N. J. Eq. 93, 3 Atl. 157.

49 Miall v. Brain, 4 Madd. 119. 50 Butcher v. Kemp, 5 Madd. 61. 51 Parker v. Downing, 4 L. J. Ch. N. S. 198; Miller v. Thurgood, 33 Beav. 496; Morrison v. Bowman, 29 Cal. 337, 349; Estate of Gotzian, 34 Minn. 159, 57 Am. Rep.

lease the whole realty,52 have been held to be inconsistent with the widow's assertion of her claim to dower. But a gift to the widow herself of a rent charge or annuity out of lands is not repugnant to the assertion of her claim to dower in the same lands;53 nor is a bequest to her of the rents and profits of all the property, for the purpose of rearing, clothing, and educating the testator's children;54 nor is a direction that if any portion be left after paying debts it shall pass to the widow.55 And where a husband who had assigned his property for the benefit of creditors, expressly reserving the wife's dower, subsequently devised property to her, it was decided that the devise was not to be taken as in lieu of dower on the ground that as the purchaser at the sale did not pay for the dower interest, it was not to be presumed that the husband intended by the subsequent devise to take it away from his wife and thus allow it to pass to the purchaser.56

43, 24 N. W. 920; Pratt v. Douglass, 38 N. J. Eq. 516, 537.

52 Hall v. Hill, 1 Dru. & War. 94; O'Hara v. Chaine, 1 Jones & L. 662; Grayson v. Deakin, 3 De Gex & S. 298; Parker v. Sow erby, 1 Drew. 488; Linley v. Taylor, 1 Giff. 67.

53 French v. Davies, 2 Ves. Jun. 572; Greatorex v. Cary, 6 Ves. Jun. 615; Holdich v. Holdich, 2 You. & C. Ch. 18; Lowes v. Lowes, 5 Hare 501; Hall v. Hill, 1 Dru. & War. 94, 103; Dowson v. Bell, 1 Keen 761; Miall v. Brain, 4 Madd. 119; Pearson v. Pearson, 1 Bro. C. C. 291; Pitts v. Snowden,

1 Bro. C. C. 292, n.; Foster v. Cooke, 3 Bro. C. C. 347. See, however, Arnold v. Kempstead, Amb. 466; Villareal v. Galway, Amb. 682; Jones v. Collier, Amb. 730; Wake v. Wake, 3 Bro. C. C. 255.

54 And she was entitled to have her dower set apart to her at once without relinquishing her trust in the remainder.-Rittgers v. Rittgers, 56 Iowa 218, 9 N. W. 188.

55 Nelson's Admr. v. Kownslar's Exr., 79 Va. 468.

56 Pepper v. Thomas, 85 Ky. 539, 4 S. W. 297.

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§823. Right of Election Is Personal: Reasons for Election Immaterial.

The doctrine of election does not apply to creditors. If a testator in his will appropriates for the payment of his debts certain property which is not liable therefor, and by the same instrument gives to other persons property which under the law is liable for the payment of his debts, a creditor of the testator may proceed against the latter-mentioned property, although subversive of the testator's directions, without releasing his claim against the property charged for the payment of debts."7

The right of a donee under a will wherein his property has been disposed of to another, to elect to stand on his statutory rights or to take under the will, is personal to such donee. This right can not be controlled by the creditors, personal representatives of the donee, or the court. It might be to the advantage of a creditor to compel a donee to disclaim a devise in his favor and to take under the statute. Likewise it might be of advantage to the heirs of a deceased devisee to allow his personal representatives to exercise the privilege. But the general rule is that the right of election can be exercised only by the donee during his lifetime unless he is laboring under such disability as would authorize the court to make the election for him.58 And this right of election.

57 Deg v. Deg, 2 P. Wms. 412;
Clark v. Guise, 2 Ves. Sen. 617;
Kidney v. Coussmaker, 12 Ves.
Jun. 136.

58 Fosher v. Guilliams, 120 Ind.
172, 22 N. E. 118; Bottom v. Fultz,
124 Ky. 302, 98 S. W. 1037; Hard-
ing's Admr. v. Harding's Exr., 140
Ky. 277, Ann. Cas. 1912B, 526, 130

S. W. 1098; Bains v. Globe Bank & Tr. Co., 136 Ky. 332, 136 Am. St. Rep. 263, 124 S. W. 343; Millikin v. Welliver, 37 Ohio St. 460; Page v. Eldredge, 69 N. H. 575, 45 Atl. 411; In re Crozier's Appeal, 90. Pa. St. 384, 35 Am. Rep. 666; Church v. McLaren, 85 Wis. 122, 55 N. W. 152.

does not depend upon the value of the benefit conferred by the will. Although the benefit may be many times greater than the statutory right, yet the donee may renounce the will; and likewise he may take under the will even though the gift be very much less than his interest in the property disposed of by the testator. An election properly made is final, and the court can not question its validity by inquiring into the reasons therefor.59

§ 824. The Same Subject: Creditors Can Not Force Survivor to Claim Statutory Rights as Against the Will.

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It has been argued that the right of a husband or wife to an estate by curtesy or of dower in the real property of the other vests immediately in the survivor. This, however, is not a correct statement; if either the husband or wife in his or her will confers a benefit therein on the other and at the same time disposes of property in which such other has an interest, the vested right which the survivor has is the choice between the statutory rights and the benefits under the will. Either a husband or wife may dispose of his or her property by will as he or she may desire, limited only by legal disabilities imposed. Either has the right to make a will wherein the right of the other by curtesy or of dower is cut off, subject only to the right of the survivor to renounce the will and insist upon his or her statutory claim. This may leave the survivor with no property out of which the claims of the creditors may be satisfied; nevertheless the

59 McCallister v. Brand's Heirs, 11 B. Mon. (Ky.) 370; In re Powell's Estate, 225 Pa. St. 518, 74 Atl. 421.

60 Shields v. Keys, 24 Iowa 298; Potter v. Worley, 57 Iowa 66, 7

N. W. 685, 10 N. W. 298; Piekenbrock & Sons v. Knoer, 136 Iowa 534, 114 N. W. 200; Garner v. Wills, 92 Ky. 386, 388, 17 S. W. 1023; Bottom v. Fultz, 124 Ky. 302, 98 S. W. 1037.

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creditors will not be heard to complain should the survivor elect to take under the will. This rule applies in all cases where the property of the decedent testator is not liable for the debts of the survivor. If the creditors of the survivor could not have proceeded against the property of the decedent during the lifetime of the decedent, they can not compel the survivor to claim his or her statutory rights in order that their demands may be satisfied.61

§825. Court May Make Election for Donee If He Be Alive but Incapable of Acting.

Where the donee is incapable of acting for himself and of making an election, such as being insane, the fact that the right of election is personal does not interfere with the power of the court to make the election if the donee be alive. Neither does this power conflict with the principle that the right of election dies with the donee.62 Such election, when once made by the court, is conclusive in all jurisdictions. If the donee is incapable of acting, the election can not be made by the next friend,"

61 Brightman V. Morgan, 111 Iowa 481, 82 N. W. 954; Piekenbrock & Sons v. Knoer, 136 Iowa 534, 114 N. W. 200; Robertson v. Schard, 142 Iowa 500, 134 Am. St. Rep. 430, 119 N. W. 529; Garner V. Wills, 92 Ky. 386, 388, 17 S. W. 1023; Hill v. Cornwall & Bros. Assignee, 95 Ky. 512, 26 S. W. 540; Townsend's Assignee V. Townsend, 127 Ky. 230, 16 L. R. A. (N. S.) 316, 105 S. W. 379; Bains V. Globe Bank & Tr. Co., 136 Ky. 332, 136 Am. St. Rep. 263, 124 S. W. 343.

62 Martin v. Battey, 87 Kan. 582,

64

Ann. Cas. 1914A, 440, 125 Pac. 88;
Nailor's Children v. Nailor, 4 Dana
(34 Ky.) 339; Bonnie's Guardian v.
Haldeman, 31 Ky. L. 522, 102
S. W. 308; In re Andrews, 92 Mich.
449, 17 L. R. A. 296, 52 N. W. 743;
Washburn v. Van Steen wyk, 32
Minn. 336, 20 N. W. 324; Wright
v. West, 2 Lea (70 Tenn.) 78, 31
Am. Rep. 586; Van Steenwyck v.
Washburn, 59 Wis. 483, 48 Am.
Rep. 532, 17 N. W. 289.

63 Washburn v. Van Steenwyk, 32 Minn. 336, 20 N. W. 324.

64 Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539; Cro

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