Summary
In Edwards, the court determined that the widow had not abandoned her contested probate of a will by subsequently renouncing the will.
Summary of this case from Waldrup v. United StatesOpinion
No. 35162.
January 25, 1943.
1. ELECTION OF REMEDIES.
Where one has at his command inconsistent remedies and is doubtful which is right one, in the absence of facts creating an equitable estoppel, he may pursue any or all of them until he recovers through one.
2. WILLS.
Where widow contested probate of alleged nuncupative will and appealed from judgment establishing will and thereafter before expiration of six months renounced will so established, renunciation was not an "abandonment" of the contest and widow did not thereby elect remedy so as to be "estopped" to prosecute appeal, since there was no inconsistency because widow in both cases was claiming as heir rather than under will (Code 1930, sec. 3561).
3. WILLS.
The renunciation of will under statute does not affect validity of will but merely affects amount of property which parties receive, the renouncer as heir of decedent and the others as beneficiaries under the will (Code 1930, sec. 3561).
4. WILLS.
Widow contesting probate of alleged nuncupative will was not, by reason of renunciation within six months' period pending appeal in proceeding to establish nuncupative will, barred of right to prosecute such appeal, since renouncement did not affect validity of will, but only amount of property which parties would receive (Code 1930, secs. 3561, 3562).
5. TRIAL.
In proceeding for probate of alleged nuncupative will, contested by widow, instruction relating to effect of will in respect to distribution of property and that real estate was not involved, was erroneous as argument to jury that establishment of will would be no injustice to widow because she would be taken care of anyway, and leaving jury to speculate about respective values of real and personal property.
6. WILLS.
It is not province of jury on contest of will to say whether decedent should or should not have made a will, or to make one for him, or determine whether it is equitable or just, nor construe it.
7. WILLS.
It is not province of trial judge to construe will on contest thereof.
APPEAL from chancery court of Simpson county, HON. BEN STEVENS, Chancellor.,
Bee King, of Mendenhall, and D.C. Enochs, of Jackson, for appellants.
The lower court erred in granting instruction number two. The court proceeded to tell the jury that by their verdict in establishing the will as alleged, the entire estate of decedent insofar as the personal property is concerned would all pass in trust for the use, benefit, support and maintenance of the widow of decedent for the balance of her natural life, and at her death any remaining property would then be divided among the legal heirs of decedent, share and share alike, and that the real estate owned by decedent is not involved but that the same descended upon the death of A.M. Edwards to the contestant.
This instruction was very prejudicial to the contestant. It was practically telling the jury that if it wanted to be fair to everybody they should render such a verdict. It practically intimated to the jury that the widow might not be as well off without the will as with it. It told the jury that the heirs of A.M. Edwards were some other persons than his widow (ostensibly his brother, sisters, nephews and nieces). It told the jury that the widow would get all of the real estate even with the will. There was every implication in the instruction that the jury would do its duty if it found the alleged will. It is not to be doubted that many of the jurors felt that it would not be right for Mrs. Edwards' heirs to inherit any part of the estate, and that what was not needed for her ample and comfortable support should go to the proponents, whom they and the court believed were in some way the heirs of A.M. Edwards.
It was no part of the business of the jury to construe the will, or to let what they thought should have been the will to influence them in finding whether there was a will, and what it was, and the court should not have undertaken to tell the jury what the court's construction of the alleged will was.
The manner in which the property would descend or be distributed in the event they found against the validity of the will was no concern of the jury.
Ellis v. Ellis, 160 Miss. 345, 134 So. 150.
We submit that the renunciation in the time required by law pending an appeal, follows the appeal, which is not affected thereby, where the widow is the sole and only heir at law of the alleged testator, and entitled to question the validity of the decree of probate insofar as it affects her right to all of the estate.
Opposing counsel cites some authority to the effect that where a widow renounces the will of her husband, she elects not to claim under it; but the question involved in this appeal is whether or not there is a will at all, which we earnestly insist she has a right to present to this court by her appeal, notwithstanding, for fear of an affirmance of the decree of probate, she has renounced the will as probated within the required time.
There is nothing inconsistent in a widow, who is the sole heir of her husband, in renouncing his alleged will and in appealing from its probate. The renunciation affects only a part of the estate, and the appeal affects the rest of the estate.
J.B. Sykes and Edwards Edwards, all of Mendenhall, and Hilton Kendall, of Jackson, for appellee.
When the widow renounced the will she thereby admitted its validity and is now estopped from claiming thereunder, and is likewise barred of any right to further prosecute this appeal.
The election of the widow to take against the will has the effect of accelerating any remainders limited to take effect after life estate given her. The election of a widow to take against her deceased husband's will is equivalent to her death as respects payment of legacies and the distribution of that part of the estate which is to be distributed under the will upon the happening of that event.
28 R.C.L. 323.
In the will probated in the lower court and here involved the widow had a legacy or an annuity for the remainder of her natural life with remainder, if any left at her death, to certain parties therein named, or devisees. Her election by renouncing the will was in effect the same as if she had died on that date.
Williams v. Williams, 111 Miss. 129, 71 So. 300.
Argued orally by D.C. Enochs, for appellant, and by J.P. Edwards, for appellee.
Appellant is the widow and sole heir-at-law, and appellees are the sisters, nephews and nieces and a brother, of A.M. Edwards, deceased. Appellees propounded and succeeded in having established an alleged nuncupative will of A.M. Edwards, under which appellant has a life and appellees a remainder interest in the personal estate of decedent. The widow appeals.
Appellees, by plea in bar filed here, contend first that this appeal should be dismissed because appellant, after the case was tried below and a few days before expiration of six months thereafter, renounced, by writing, the will so established. By this, appellees say, she has elected her remedy and is estopped to prosecute the appeal. Neither side has cited an authority in point and our research has disclosed none. The question must be determined by applying the state statutes to the facts of the case, having in view the purposes of and rights under such statutes.
Section 3561, Code of 1930, provides that when the will of the husband or wife does not make satisfactory provision for the other, the survivor, at any time within six months after the probate of the will, may renounce it by filing in the office where probated a written renunciation thereof. In the vast majority of cases, the appeal is not heard here within six months after the trial below, so that in such cases a contestant is put to the hazard of either renouncing within the six months and being met with the doctrine of election, or waiting until the case is finally determined and being met with the expiration of the six months requirement for renunciation. We think the rule that where one "has at his command inconsistent remedies and he is doubtful which is the right one, in the absence of facts creating an equitable estoppel, he may pursue any or all of them until he recovers through one, since the prosecution of a wrong remedy to defeat will not estop him from subsequently pursuing the right one," 28 C.J.S., Election of Remedies, p. 1085, sec. 12, is applicable here, conceding that there is an inconsistency between renunciation and the prosecution of the appeal. Of course, a contestant cannot know his rights until the contest is terminated.
But we do not think that there is an inconsistency. In both cases, appellant is claiming as an heir of decedent; in neither is she claiming under the will. Under both the renunciation and the contest, if successful, she takes by inheritance. In addition to that, the renunciation is not an abandonment of the contest, for the reason that, under said Section 3561, the will, although renounced, is yet, if established, effective to convey a part of the estate of the testator. Appellant, as renouncer, is only entitled to part of the estate of her husband; as successful contestant herein she would be entitled to all of it. Renouncement does not affect the validity of the will; it affects only the amount of property which the parties receive — the renouncer as heir of decedent and the others as beneficiaries under the will. The will stands. But a successful contest establishes that there is no will. Therefore, renouncement cannot be substituted for a contest of a will. Section 3562, Code 1930, a companion Section to 3561, provides that where the will of the husband or wife makes no provision whatever for the other, the law renounces it for the survivor, who thereupon has the right to share in the estate of the decedent as in case of unsatisfactory provision, followed by renouncement by the survivor. So that, if renouncement works estoppel to contest the will, we would have the anomaly of the law itself making the election under Section 3562 and thereby cutting off the right of contest. We do not think appellant is barred of her right to prosecute this appeal.
It is not necessary for us to, and we do not, decide whether, under the circumstances here or any similar circumstances, a renunciation might be filed after, and within six months of, termination of an unsuccessful contest of a will.
The trial court granted proponents instruction number two, reading: "The court instructs the jury for the proponents that if you find that a nuncupative will was made as is alleged, then such will should be established by your verdict in this case and that thereby the entire estate of decedent insofar as the personal property is concerned, would all pass in trust for the use, benefit, support and maintenance of the widow of decedent for the balance of her natural life and at her death any remaining property would then be divided among the legal heirs of decedent, share and share alike, and that the real estate owned by decedent is not involved in this proceeding, but that same descended upon the death of the said A.M. Edwards to his widow." In Ellis v. Ellis, 160 Miss. 345, 134 So. 150, 153, this court said: "The appellant next complains of the refusal of three instructions to the effect that, although the jury should find in favor of the contestant, the widow, Mrs. Ellis, would still have the right to renounce the will in favor of the contestant and take by descent one-half of the estate. These instructions were properly refused. It was the province and duty of the jury to determine issues of fact submitted to it, and the manner in which the property would descend or be distributed in the event they found against the validity of the will was no concern of the jury."
It is not the province of the jury, on a contest of a will, to say whether decedent should or should not have made a will, or to make one for him, or to determine whether it is equitable or just, nor to construe it. Magee v. McNeil, 41 Miss. 17, 90 Am. Dec. 354. And, we might add, neither is it the province of the trial judge to construe the will on such contest. Cameron v. Watson, 40 Miss. 191, 209. The meaning and effect may be, and often are, very doubtful. It is pertinent to the idea under discussion to say that, in some respects, that is true of this alleged will. But this instruction was an argument to the jury that the establishment of this will would be no injustice to the widow because she would be taken care of anyway, and, too, it left the jury to speculate about the respective values of the real and personal property. The granting of this instruction was reversible error.
We have examined the other assignments of error, including the contentions (1) that testator did not have testamentary capacity; (2) that the evidence fails to show the rogatio testium; (3) that testator did not intend to make a will; and (4) that the words the jury found he uttered are not testamentary in character and effect; and in our opinion no error is embraced in such assignments.
Reversed and remanded.