Carper v. Crowl

Citations

• 149 Ill. 465

Syllabus

<p>1. Will—election of widow to take under. Where a widow fails to renounce the benefit of a- devise to her by her husband, in Ms will, within one year from the probate thereof, in accordance with sections 10 and 11 of the statute relating to dower, she will be presumed to have elected to take under the will.</p> <p>2. The effect of the widow’s failure to renounce under the statute is to bar only her dower and distributive share of her husband's estate as widow, and nothing more.</p> <p>3. Same—election to take under devise. If property of a third person is devised, and in the same will a benefit is given to such third person, which is accepted with knowledge of all the facts and of the rights of the donee accepting, the acceptance is regarded as a confirmation of the dispositions made by the will. So if a testator intending to dispose of his property, includes in the disposition property of another person, and at the same time gives to such other person an interest in the estate of the testator, such person will not be permitted to defeat the disposition made by the will and at the same time take under it. He is put to his election whether he will retain his own property or take the benefit conferred by the will.</p> <p>4. Same—election—compensation to party injured.. Where a testator has made a disposition of property not his own, and has given a benefit to the person to whom it belongs, the devisee or legatee accepting the benefit so given to him must make good the testator’s attempted disposition. If,' on the contrary, he chooses to enforce his proprietary right as against the testator’s disposition, equity will sequester the benefit intended for the refractory donee, in order to secure compensation to those whom his election disappoints, and, after making such compensation, restore the surplus, if any, to the donee.</p> <p>5. Same—when no compensation awarded. There can be no compensation awarded when no fund or interest will pass, under the will, to the donee