Ashelford v. Chapman

Citations

• 81 Kan. 312
• 105 P. 534
• 1909 Kan. LEXIS 363

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Wills — Rights -of a Widow. A widow provided for by her husband’s will has the choice of two rights, one under the statute of descents and distributions and one under the will; but she can not have both, except in cases where such is the purpose of the will. She may take either, but the election of one is a relinquishment of the other.</p> <p>2. - Effect of Widow’s Election to Take under the Statute. The widow’s election is between will and no will. If she take under the statute there is no will as to her, and none of her rights can be abridged by any of its provisions. Her share is carved out of the estate according to law, precisely as if no will had been made. Then the will operates upon the residue.</p> <p>3. - Same. If the widow take under the statute the principle that there is no will as to her forbids that she should enlarge any of her rights under the statute by an appeal to the will. She is a stranger to it and has no standing to compel others who take under the will to comply with provisions which might increase her distributive share of the estate.</p> <p>4. - Same. When a widow elects to take in opposition to her husband’s will she receives the share of his estate that she would have taken had he died intestate, which is one-half in ■value after the payment of debts.</p> <p>5. - Widow Bound by Her Election to Disregard a Will. A husband made provision for his wife and children in his will. The children were given certain real estate the purchase price of which had not been fully paid. The will required the children to contribute equally from their shares of the estate sufficient sums to satisfy this indebtedness. The widow elected to take under the statute of descents and distributions, and in an action to partition the real estate demanded that the purchase-money liens be charged entirely upon the children’s portions. Held, -she is bound by her election to disregard the will, can not invoke to her advantage the provi