executed by the widow and by her assent being given to take the legacy. Its completion can only be effected when, after the death of her husband, the provisions of the will are accepted32. The fact that a widow gave her consent to abide by the provisions of the will does not preclude her from the right to share in the residuary clause which is declared invalid33. It is clear that when a woman is provided for in her husband's will she has the right to elect whether she will take such provision or not-in other words, she shall elect either to take under the will or be endowered31. In the event of insufficiency of assets the costs of a suit to establish the rights of a widow as to her acceptance of the provisions will be ordered paid out of the estate of the testator35.

$252. Taking Against Will.

In a case where a widow takes against the will and the testator has left children surviving him, and the widow elects to take under the statute, she is entitled to one-third of the first amount of the net estate, and one-sixth of the residue after deducting the first amount of the said estate3.

§253. Void Will Not to be Rendered Valid by Election.

A void will, which is mainly so on account of the provisions made for the wife, cannot be made valid by the wife electing to take under the statute37.

32. Tracy v. Murray, 44 Mich. 109, 6 N. W. 224.

33. State v. Holmes, 115 Mich. 456, 73 N. W. 548.

34. Stearns V. Perrin, 130 Mich. 456, 90 N. W. 297.

35. State v. Holmes, 115 Mich. 456, 73 N. W. 548.

36. Phillips V. Phillips, Mich. 433, 51 N. W. 1071.

91

37. Dean V. Mumford, 102 Mich. 570, 61 N. W. 7.

§254. A Widow When Not Precluded.

A wife, who accepts the provisions made in a will in lieu of dower, may enforce a claim against the testator's estate, and neither will a recital in a will preclude her from doing so38.

$255. Taking Under Will Not Entitled to Dower in Addition.

A widow cannot accept the provisions under the will and claim dower in addition39, neither can she claim anything additional which is not bequeathed40. Although a testator has made provision for his widow under a will, a reasonable allowance, authorized by statute for her support and the support of the minor children, will be made pending the settlement of the estate12.

$256. Second Wife's Interest in Will Providing For First Wife.

The dower rights of the second wife in the testator's estate are the same as if he had died intestate where a husband during the life-time of his first wife made a will

38. Taylor v. Taylor's Estate, 138 Mich. 658, 101 N. W. 832.

39. Miller v. Stepper, 32 Mich. 194.

40. In re Smith's Estate, 60 Mich. 136, 27 N. W. 80.

41. C. L. '97, §9289. All the estate of the testator, real and personal, shall be liable to be disposed of for the payment of his debts, and the expenses of administering his estate, and the probate court may make such reasonable allowance as may be judged

necessary for the expenses of the maintenance of the widow and minor children, or either, constituting the family of the testator, out of his personal estate, or the income of his real estate, during the progress of the settlement of the estate, but never for a longer period than until their shares in the estate shall be assigned to them.

42. Moore v. Moore, 48 Mich. 271, 12 N. W. 180.

devising and bequeathing all his property, and after her death he remarried and died without changing his will, or in any way making provisions for his second wife13.

§257. Abatement.

In a case where a widow elects to take under a general provision in lieu of dower and the assets are insufficient, the bequest is subject to abatement pro rata with the other pecuniary bequests44.

43. Burrall v. Bender, 61 Mich. 608, 28 N. W. 731.

44. Tracy v. Murray, 44 Mich. 109, 6 N. W. 224.

CHAPTER XV.

THE RIGHTS OF DEVISEES AND LEGATEES.

$258. Time of Accrual of Right to Devise or Legacy.

$259. Payment of Legacies. Time Fixed by Will. Rule When Not

Fixed.

$260. Out of What Property or Fund Legacies to be Paid.

$261. Interest on Legacies.

$262. Acceptance and Renunciation.

$263. Waiver, Abandonment and Forfeiture.

$264. Title of Devisees and Legatees.

$265. Election Between Proceeds and Bequest.

$266. Possession of Property.

$267. Support and Maintenance.

$268. Transactions Between Devisees or Legatees.

$269. Bequests to Creditors.

$270. Rights of Creditors of Devisees and Legatees. $271. Actions by Devisees or Legatees.

§258. Time of Accrual of Right to Devise or Legacy.

The rule is well settled that, unless an intention appears to the contrary, the will shall operate from the death of the testator, and estates vest at that time1. It is apparent that under this rule specific bequests vest at the death of the testator, and are not dependent upon any order of distribution or allotment by the probate court; the identical thing given is served from the bulk of the testator's property by the operation of the will from his death. Where one of the legatees had one child at the death of the testatrix, but shortly afterwards gave birth to another child, and the

1. Rood v. Hovey, 50 Mich. 284, Toms v. Williams, 41 Mich. 552, 2 N. W. 814; Eberts v. Eb

erts, 42 Mich. 404, 4 N. W. 172.

2. Proctor V. Robinson, 35 Mich. 284.

first child died thereafter, followed by its mother, the second child was entitled to one-fifth of the estate without waiting until the youngest child of the testatrix arrived at the age of twenty-one3. In the event of a widow electing to take under the law, the rule is that the residue, after payment of the debts, expenses of administration and the portion due to the widow, should be distributed immediately to the legatees*.

$259. Payment of Legacies. Time Fixed by Will. Rule When Not Fixed.

If the time is fixed by the will when the legacy is payable, the legacy is payable at that time and it can be enforced, provided it does not violate the statute of perpetuity. A payment of a legacy on the demand of the legatee is valid3. The rule is well established at common law where the will does not fix the time of payment of the legacy, the time of payment is fixed at one year after the death of the testator, and where legacies are to be paid out of one of two funds, the will being ambiguous as to which one, the one available immediately is the fund out of which the legacies are to be paid.

$260. Out of What Property or Fund Legacies to be Paid.

A general legacy where there are two funds charged for the education of children and the will is ambiguous the fund immediately available is to be utilized for the pur

3. In re Schilling's Estate, 102 Mich. 612,

4. In re Schultz's Estate, 113 Mich. 592, 71 N. W. 1079.

5. Smith v. Jackman, 115 Mich. 192, 73 N. W. 228.

6. Thurber v. Battey, 105 Mich. 718, 61 N. W. 62.