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the former gift, or he may make no other provision for her. In either case, should the widow remarry, the property taken from her will revert to the estate or may pass under the will should the testator make a gift over of such property to be effective in the event of such contingency. But if the will makes no such provision, the property lost to the widow reverts to the estate and stands as intestate property. Where the widow has been given a portion of the original property, or some other gift, in the event of her marriage, the will may evince that the intention of the testator was likewise that it should stand in lieu of dower.17 But as to any personal property which may have reverted to the estate, the widow would take her share under the statute of distribution in addition to the provision made by the will.18 Where no further disposition of the property is made by the will either to the widow who remarries or to another, it all becomes intestate property and the former wife is entitled to her distributive share in such property as in the case of intestacy.19

§ 836. Election Against the Will: Rights of Widow.

Where a donee under a will whose property or an interest therein has been conveyed by the same instrument to another, elects against the will and demands his statutory rights, such donee is thenceforth a stranger to the will and is entitled to his property precisely as in the case of intestacy. Thus, a widow would have her right of dower in the real property of her husband the same

17 Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739.

18 Bennett v. Packer, 70 Conn. 357, 66 Am. St. Rep. 112, 39 Atl. 739.

19 Beshore v. Lytle, 114 Ind. 8, 16 N. E. 499. See, also, McGuire v. Brown, 41 Iowa 650; Mannan v. Mannan, 154 Ind. 14, 55 N. E. 855.

as if he had made no will. She either takes the real property; or, if the land be sold in order to effect a division among the heirs or devisees or be sold by reason of directions in the will, or by an order of court in order to secure assets to pay the debts of the estate, the widow is entitled to have her claim satisfied out of the proceeds.20 If the lands are covered by a mortgage in which the wife had joined, her dower right is subject to the mortgage, but superior to all other rights.21 If the land is sold under foreclosure the widow's dower interest attacles to one-third of the surplus.22

§ 837. Rights Affected by Widow Electing Against the Will. The rejection of the will by the widow and her election to take what the law gives her instead of under the will, is followed by the usual consequences of an elec

20 Chaney v. Chaney, 38 Ala. 35; Cook's Exr. v. Cook's Admr., 20 N. J. Eq. 375; Schmitt v. Willis, 40 N. J. Eq. 515, 4 Atl. 767.

21 Fry v. Merchants' Ins. Co., 15 Ala. 810; Cox v. Garst, 105 Ill. 342; Mayfield v. Wright, 107 Ky. 530, 54 S. W. 864; Morgan v. Wickliffe, 115 Ky. 226, 72 S. W. 1122; Sargeant v. Fuller, 105 Mass. 119; Smith v. Stephens, 164 Mo. 415, 64 S. W. 260; Needles v. Ford, 167 Mo. 495, 67 S. W. 240; Norris v. Morrison, 45 N. H. 490; Smith v. Gardner, 42 Barb. (N. Y.) 356; McMichael v. Russell, 68 App. Div. (N. Y.) 104, 74 N. Y. Supp. 212; Jewett v. Feldheiser, 68 Ohio St. 523, 67 N. E. 1072.

22 Hewitt v. Cox, 55 Ark. 225, 15 S. W. 1026, 17 S. W. 873; Virgin

v. Virgin, 189 Ill. 144, 59 N. E. 586; Campbell v. Wilson, 195 III. 284, 63 N. E. 103; Hall v. Marshall, 139 Mich. 123, 111 Am. St. Rep. 404, 102 N. W. 658; Hinchman v. Stiles, 9 N. J. Eq. 361; Hawley v. Bradford, 9 Paige Ch. (N. Y.) 200, 201; Geiger v. Geiger, 57 S. C. 521, 35 S. E. 1031; Lavender v. Daniel, 58 S. C. 125, 36 S. E. 546; Land v. Shipp, 100 Va. 337, 41 S. E. 742.

The Ohio rule is that the widow's dower is computed as onethird of the entire proceeds of the sale under the mortgage foreclosure, but her interest is payable only out of the surplus and does not attach to the land itself.Mandel v. McClave, 46 Ohio St. 407, 15 Am. St. Rep. 627, 5 L. R. A. 519, 22 N. E. 290.

tion in other cases, and the property given to her by the will is sequestered to compensate those beneficiaries under the will who have been disappointed in their gifts because of the widow's election.23 If the testator provides in his will for the contingency of his widow demanding her statutory rights, then the intention of the testator will be given effect. Thus, if he directs that in case his widow should claim her rights under the law the deduction should be made from the benefits conferred to a designated beneficiary, the loss will be borne by the one appointed by the testator.24 The will being silent on the subject, the property given to the widow in the testator's will is first used to compensate the disappointed beneficiaries.25 If the provision made for the widow by the

23 Dean v. Hart, 62 Ala. 308, 310; Allen v. Hannum, 15 Kan. 625; Jennings v. Jennings, 21 Ohio St. 56, 81; Cauffman v. Cauffman, 17 Serg. & R. (Pa.) 16; In re Sandoe's Appeal, 65 Pa. St. 314; In re Batione's Estate, 136 Pa. St. 307, 20 Atl. 572; Callahan v. Robinson, 30 S. C. 249, 3 L. R. A. 497, 9 S. E. 120; Colvert v. Wood, 93 Tenn. 454, 25 S. W. 963; Jones v. Knappen, 63 Vt. 391, 14 L. R. A. 293, 22 Atl. 630; McReynolds v. Counts, 9 Gratt. (Va.) 242; Kinnaird v. Williams' Admr., 8 Leigh (Va.) 400, 31 Am. Dec. 658; Ford v. Ford, 70 Wis. 19, 55, 5 Am. St. Rep. 117, 33 N. W. 188.

As to widow renouncing a life estate in property given her by will, see 838.

If a widow renounces the provisions made for her in the will, she is thenceforth a stranger to it,

and is entitled to her legal estate in the land precisely as in case of intestacy. If an admeasurement is made to her in money, then the land representing the money is liable therefor, and if funds of the estate are used in paying the assessment to her, the amount becomes a charge upon the land in the hands of the devisees benefited by the payment.Witherspoon v. Watts, 18 S. C.

396.

24 In re Mohn's Appeal, 76 Pa. St. 92.

See §§ 690, 691.

25 Cooper v. Cooper, L. R. 7 H. L. 53; Smith v. Lucas, 18 Ch. Div. 531, 543; Freke v. Barrington, 3 Bro. C. C. 286; In re Hancock, (1903) 1 Ch. 16; Key v. Jones, 52 Ala. 238, 244; Farmington Sav. Bank v. Curran, 72 Conn. 342, 44 Atl. 473.

will is sufficient to make good the losses to the beneficiaries whose gifts were diminished or taken away to satisfy the widow's statutory rights, then no contribution is necessary. And if, after the losses of such disappointed beneficiaries have been satisfied, there remains a surplus, this surplus goes to the widow under the will. The principle prevailing is one of compensation rather than of forfeiture.26

Where the widow demands her statutory rights and the property rejected by her under the will is insufficient to satisfy the losses of those beneficiaries whose gifts were diminished or exhausted to satisfy the widow's demands, such disappointed beneficiaries are entitled to call upon others taking similar interests to contribute.27

26 Bell v. Nye, 255 Ill. 283, 42 L. R. A. (N. S.) 1127, 99 N. E. 610; Wakefield v. Wakefield, 256 Ill. 296, Ann. Cas. 1913E, 414, 100 N. E. 275; Shanley v. Shanley, 34 App. Div. (N. Y.) 172, 54 N. Y. Supp. 652; Kirchner v. Kirchner, 71 Misc. Rep. 57, 127 N. Y. Supp. 399; Lewis v. Lewis, 13 Pa. St. 79, 53 Am. Dec. 443; Colvert v. Wood, 93 Tenn. 454, 25 S. W. 963; Latta v. Brown, 96 Tenn. 343, 31 L. R. A. 840, 34 S. W. 417; Jones v. Knappen, 63 Vt. 391, 14 L. R. A. 293, 22 Atl. 630; Higginbotham v. Cornwell, 8 Gratt. (Va.) 83, 87, 56 Am. Dec. 130; Ford v. Ford, 70 Wis. 19, 56, 5 Am. St. Rep. 117, 33 N. W. 188; Pickersgill v. Rodger, 5 Ch. Div. 163, 173; Welby v. Welby, 2 Ves. & B. 190; Carper v. Crowl,

149 Ill. 465, 36 N. E. 1040; Hink-
ley v. House of Refuge, 40 Md.
461, 17 Am. Rep. 617; Lewis v.
Lewis, 13 Pa. St. 79, 53 Am. Dec.
443. But see Devecmon v. Shaw,
70 Md. 219, 16 Atl. 645.
See § 817.

V.

27 Wakefield v. Wakefield, 256 Ill. 296, Ann. Cas. 1913E, 414, 100 N. E. 275; Henderson v. Green, 34 Iowa 437, 11 Am. Rep. 149; McGuire v. Luckey, 129 Iowa 559, 105 N. W. 1004; Chamberlain Berry's Exr., 22 Ky. L. 44, 56 S. W. 659; In re Sandoe's Appeal, 65 Pa. St. 314; In re Vance's Estate, 141 Pa. St. 201, 23 Am. St. Rep. 267, 12 L. R. A. 227, 21 Atl. 643; Baptist Female Univ. v. Borden, 132 N. C. 476, 44 S. E. 47, 1007; Latta v. Brown, 96 Tenn. 343, 31 L. R. A. 840, 34 S. W. 417.

The order in which legacies abate is well established. The fact that certain benefits may be diminished is only an incident calling for contribution-it does not control or justify an interference with the regular order of priority for the abatement of legacies.28

§838. The Same Subject: Where Widow Relinquishes Life-Estate: Doctrine of Acceleration.

Where the interest relinquished by the widow is but a life-estate, the remainder having been given by the will to others, the doctrine of acceleration may have its effect according to circumstances. Under this doctrine where a life-estate in property is given to the widow with remainder over to third parties, her election to take under the law and the waiver of her life-estate have the same result as her death, and the rights of the remaindermen are accelerated. If the interest relinquished be a lifeestate in lands and the dower be carved out of the same property, title would vest in the remaindermen subject to the dower.29 But this rule has two limitations: First, it is not applied if it is apparent from the provisions of

28 Wakefield v. Wakefield, 256 Ill. 296, Ann. Cas. 1913E, 414, 100 N. E. 275; In re Vance's Estate, 141 Pa. St. 201, 23 Am. St. Rep. 267, 12 L. R. A. 227, 21 Atl. 643. See Abatement of Legacies, §§ 690-707.

29 Dean v. Hart, 62 Ala. 308; Slocum v. Hagaman, 176 Ill. 533, 52 N. E. 332; Allen v. Hannum, 15 Kan. 625; Fox v. Rumery, 68 Me. 121; Randall v. Randall, 85 Md. 430, 37 Atl. 209; Estate of

Schulz, 113 Mich. 592, 71 N. W.
II Com. on Wills-23

1079; Beidman v. Sparks, 61 N. J. Eq. 226, 47 Atl. 811; Baptist Female Univ. v. Borden, 132 N. C. 476, 44 S. E. 47, 1007; Millikin v. Welliver, 37 Ohio St. 460; Estate of Ferguson, 138 Pa. St. 208, 20 Atl. 945; Estate of Vance, 141 Pa. St. 201, 23 Am. St. Rep. 267, 12 L. R. A. 227, 21 Atl. 643; Latta v. Brown, 96 Tenn. 343, 31 L. R. A. 840, 34 S. W. 417; Jones v. Knappen, 63 Vt. 391, 396, 14 L. R. A. 293, 22 Atl. 630.

Compare: Hank v. McComas, 98 Ind. 460.

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