Brown v. Pitney

Citations

• 39 Ill. 468

Syllabus

<p>1. Doctrine of election—as applied to devisees and legatees—its meaning. The doctrine of election, as between inconsistent rights, although founded on a principle that is just everywhere, is most frequently applied to devisees and legatees in wills; and, as applied to them, it means simply, that he who would accept the lyiunty of another must do so upon such terms and conditions as the donor may choose to impose. The beneficiary under a will cannot insist that the provisions in Ms favor shall be executed and those to Ms prejudice annulled. He must accept the instrument in its entirety or not at all.</p> <p>2. If a testator, intending to dispose of Ms property, mixes, in Ms disposition, property as to which another person has a right to defeat Ms disposition, giving to that person an interest by Ms will, that person shall not be permitted to defeat the disposition where it is in Ms power, and yet take under the will. In such case there must be an election.</p> <p>3. Same—as applied to dower. The rule of election applies to every species of right, and the right of dower is no more protected than any other.</p> <p>4. Same — the rule under our statute. Under the tenth section of our existing statute of dower, if the will of the husband devise land to the wife, such devise is of itself a bar of dower unless otherwise expressed in the will, but the widow may nevertheless renounce the will and claim her dower.</p> <p>5. On the other hand, a bequest of personalty does not, of itself, like a devise of realty, bar the dower, since the Eevision of 1845.</p> <p>6. If, however, the testator, in bequeathing personalty to the widow, shows, either by express terms or by necessary implication from other provisions in the will, that the personalty is intended to be in lieu of dower, then the widow must elect between the bequest and her dower.</p> <p>7. But under our law a still different case may arise. By the fifteenth section of the dower act, the widow of a husband who has died