came in to enlarge her rights by enabling her to elect as to personalty as well as realty. But there is nothing in this statute which gives her the right to claim a bequest of personalty, and, at the same time, claim an interest by intestacy. If she claims a bequest of personalty, the will stands as to the other bequests. By the second clause of the statute it is provided that where she has an election. between taking a specific thing and a bequest in lieu of it, such election shall not affect any other testamentary provision in favor of such party, or of any other person. Under the statute an election is a valid one when made for an incompetent widow by her guardian, with the consent of the probate court, and the failure of a widow, who is incompetent, to file an election within the statutory year will not be deemed an assent on her part to take under the will10. Where a widow waived the provisions made for her in the will of the testator, and elected to take under statute, providing for the widow by giving in such cases, one-third of the net estate, until the sum shall amount to five thousand dollars, and in addition one-sixth of the residue of the estate, the residue was properly arrived at by deducting from the net estate, $32,369.37, the sum of $15,000, onethird of which passed to the widow under the first provision of the statute11, leaving as such residue the sum of $17,369.57, of which the widow was entitled to one-sixth12, In a case where a widow claiming a legacy bequeathed to her by the will of her husband in lieu of dower and leaving the residue of his estate to his children, she is not entitled to share by intestacy in his personal estate13. 9. In re Andrews' Estate, 92 Mich. 449, See S. C. 87 Mich. 167. 10. In re Andrews' Estate, 92 Mich. 449. 11. C. L. '97, §9300. 12. Phillips V. Phillips, 91 Mich. 433, 51 N. W. 1071 13. In re Estate of Smith, 60 §245. Common Law and Statutory Rule. In the event the testator fails to indicate expressly or impliedly whether the devise or bequest is given in addition to or lieu of dower, there arises the presumption under the common law that if the intention is not clearly derived from the will of the testator, the devise or bequest is to be in addition to dower. A married woman is not barred of her dower in lands whereof her husband was seized of an estate of inheritance during the marriage, and which he conveyed in his lifetime by deed in which she did not join, by reason of her having accepted the benefit of provisions made for her in the will of her husband11. §246. Dower in Relation to the Doctrine of Election. A surviving wife has certain rights given her by law. in her husband's property, both real and personal, upon his decease, and likewise has the surviving husband certain rights given him by law in the wife's property upon her decease. The right of dower and the right of curtesy are such rights. Dower may be defined as the provision which the law makes for a widow out of the lands or tenements of her husband for her support and the nurture of her children15. At common law as well as by statute, dower is a life estate in one-third of the deceased husband's real estate, and has no reference to personal property16. Curtesy at common law rests upon four requisites which are necessary to create such tenancy, viz.: marriage, seizure by the wife, issue and death of the wife17, while under the Mich. 136, 27 N. W. 80. 14. Westbrook V. Vanderburgh, 36 Mich. 30. 15. Seager v. McCabe, 92 Mich. 186, 16 L. R. A. 247, 52 N. W. 299. 16. Stearns V. Perrin, 130 Mich. 456, 90 N. W. 297. 93. 17. Halton v. Lyon, 2 Mich. statute18 a tenancy by the curtesy may be created when any man and his wife shall be seized in her right of any estate of inheritance in lands, the husband shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy, provided that if the wife, at her death shall leave issue by any former husband, to whom the estate might descend, such issue shall take the same, discharged from the right of the surviving husband to hold the same as tenant by the curtesy. Reference has been made solely to these rights for the purpose of showing their application to the doctrine of election. It is self-evident that where a devise or bequest is made in a will in lieu of dower or curtesy, full effect must be given to the intention. of the testator, and the surviving spouse must elect either to take under the provisions established by law or under those made in the will19. Where the words "in lieu of dower" are added to a devise or bequest, it is clear that the intention of the testator is to make the surviving spouse elect 20. It has been said that a bequest to a wife made in lieu of dower is a legacy21 and on election to take the provision made under a will the widow becomes a creditor of the estate 22. A married woman is not barred of her dower in lands which her husband owned at the time of his death. Neither is she barred, although she elects to take under the provisions in the will in lieu of her dower in lands of which he was seized during marriage, but conveyed without the wife joining in the conveyance23. 18. C. L. '97, §8955. 19. In re Estate of Smith, 60 Mich, 136, 27 N. W. 80. 20. Wake v. Wake, 1 Ves. jr., 335. 21. Wake v. Wake, 1 Ves. jr., 335. 22. Tracy v. Murray, 44 Mich. 109, 6 N. W. 109. Vander 23. Westbrook V. burgh, 36 Mich. 30. §247. Failure to File Notice of Election in Time. As a general rule, the notice of election must be filed within the time prescribed by law, but a failure of an incompetent widow to file such notice of election within the statutory year will not be deemed an assent on her part to take under the will, for an election made for an incompetent widow by her guardian, with the consent of the probate court, is valid. Under the statute24 providing that the testamentary disposition of personal property by a husband shall be subject to the election of his wife to take the interest bequeathed to her, or, in lieu thereof, the share that would have passed to her under the statute of distributions if the husband had died intestate, subject to certain limitations as to amount, and that such election, if to take otherwise than under the will, shall be made in writing and filed in the court in which the estate is being settled, within one year from the probate of the will, and, if not so filed, that she shall be deemed to have elected to take under the will25. $248. Presumption as to "In Lieu of Dower" Under Statutory Rule. The presumption is that the dower interest extends to all the lands the husband died seized of, and to any lands which he may have have been seized of during marriage, but which he conveyed without his wife joining in the conveyance 26. 24. C. L. '97 §§9300, 9301. 92 Mich. 449. 26. Westbrook V. Vanderburgh, 36 Mich. 30. §249. Who May Exercise the Right. The act of election is personal and must be exercised by the person in whom the right is vested. It is clearly manifest that the right of dower cannot be exercised after the death of the widow by her personal representatives or her heirs, even though the notice of election was prepared before her death, but not filed by her personal representative until after her death27. However, in case of incompetency an election made for an incompetent widow by her guardian, with the consent of the probate court, as evidenced by an order entered for that purpose, is a valid contract28. The court sustained the findings made by the probate judge, in that they were a sufficient record showing that the election filed by the guardian was made and filed with the knowledge and consent of the probate court, and that it had the same legal effect as if such record had been made at the time such election was filed29. §250. Acts Constituting Election. Evidence of inconsistent acts may rebut the presumption that a widow has accepted a devise of a life estate in remainder under a will30. An election made by a guardian for an incompetent widow with the consent of the probate court is valid31. §251. Taking Under Will. The acceptance is not completed by a release of dower 27. In re Service's Estate, 155 Mich. 179; Church v. McLaren, 85 Wis. 122. 28. In re Estate of Andrews, 92 Mich. 449, 52 N. W. 743, 17 L. R. A. 296. 29. Bassett v. Judge of Pro bate, 87 Mich. 167. 30. Defreese v. Lake, 109 Mich. 415, 52 L. R. A. 744, 63 Am. St. Rep. 584, 67 N. W. 505. 31. In re Andrews' Estate, 92 Mich. 449, 17 L. R. A. 296, 52 N. W. 743. |