Payne v. Farley

LEYX, J. (after stating the facts as above). Appellant challenges the findings in the finding of fact “that the residue of the estate was not of the value exceeding the expenses of last sickness, doctors’ bills, and taxes mentioned in the will,” and “that Prozilla Payne.' did not receive under the will of Jim Payne any more free and disposable property than she would be entitled to as her one-half interest in the community property under the laws of descent and distribution, including the widow’s allowance and exemptions which she was entitled to under the law though she received the property bequeathed to her by the will.” As to whether the wife did not receive in the evidence any more free and disposable property than she was entitled to as her half interest in the community property, somewhat depends upon the construction of the will. There is a clear and unmistakable intention ’on the part of Jim Payne, the testator, to dispose of the community interest of both himself and his wife so far as concerns the land and the particular personalty set aside to each legatee. The language shows a devise of such property as an entirety. But, dealing with the personalty not so specifically devised, the seventh clause provides: “It is lastly my will and X give and devise to my beloved wife Prozilla Payne all of my personal property not appropriated or described in the foregoing, also my money on deposit in the First National Bank of Marshall. It is my will that the last property given to my wife shall go to pay taxes on all the property for the year 1891 and for doctors’ bills and burial expenses.” Disposing of “my personal property” and “my money,” as this clause does, would not appear to show, considered in connection with the language and intent of the preceding clauses, an intent on the part of the testator to dispose of his wife’s interest in this specific part of the community property. According to the evidence, the entire “personal property not appropriated or described in the foregoing” consisted of the growing crop, which was two bales of cotton, 70 or 80 bushels of corn, 15 bushels of potatoes, and 1 y2 bushels of peas. The money on deposit was $20. This particular property was all community property.' The trial court construed the clause as not showing an intention to devise the crop and money as an entirety, but only as a disposition of the testator’s one- *795 half of this part of the community property. And this being a correct construction 'of this provision (1 Pomeroy, Eg. Jur. § 475), the wife took the husband’s half interest in the crop and money absolutely, subject only to the debts specified. There is evidence to support the finding that the taxes were paid by the wife, and that she “paid the funeral expenses.” The court’s findings, as complained of, would therefore be warranted, unless, ‘looking to the other community property devised as an entirety, the wife received more property than her one-half interest. The value of the land is not shown; but in point of acreage she received slightly less than one-half. There were six cows of the community, and she received four; there were two mules and one horse, and she got them, all the household furniture, and two turning plows and two “scuter” plows. Considering the value shown of this entire personalty mentioned, the wife did receive somewhat more than her one-half interest therein. But, in the absence of the value of the land, we cannot say from the record that the value of the personal property so received by her was greater than the lesser acreage of land set aside to her. As a consequence, we are unwilling to’set aside the findings of fact by the trial court. The court on the facts of the case concluded that the wife was not estopped by an election under the will, and gave legal force to her deed to appellee. The appellant by proper assignment challenges the conclusion of the court. Finding, as the court did, that the will of Jim Payne only attempted to give his wife a life estate in slightly less than her half interest in the land, and that she was ignorant and did not know and was not informed as to her rights and had no intention to and did not elect to take under the terms of the will, this court would not be warranted, we conclude, in holding erroneous the conclusion of the trial court that election or finality of election should not be given her acts. Consent or acquiescence must have been made understandingly, sometimes even of the person’s rights under the law. Watson v. Watson, 128 Mass. 152; Packard v. De Miranda, 146 S. W. 211; 2 Underhill on Wills, § 731; 1 Pomeroy, Eq. Jur. § 512. The judgment is affirmed.