O'Shea v. Breunig

Reese, C. J. The appellee, O’Shea, is the surviving husband of Lizzie O’Shea, who died testate. He was her second husband, she having been previously married to O. B. Murphy, deceased. She had one son, Cyril Eugene Murphy, by her first husband. There Avas no issue of the second marriage. While there is nothing in the record disclosing the extent of her estate, the will, a copy of Avhich is in the record, would seem to indicate that she died possessed of a considerable estate in her own right. She devised to her husband 200 acres of land in Boone county, and the undivided three-fourths of tAVo quarter sections of land in Platte county in fee. She also bequeathed to him certain specified articles of jiersonal property consisting of a part of her household goods and Avearing apparel. Her piano and folding-bed she gave to the Franciscan Sisters of Charity of Humphrey, Nebraska. To the sisters of her former husband, Maggie and Nora Murphy, she bequeathed a diamond ring given her by him. To her sister, Maggie Anslme, she gave a specified ring, and to her niece, Isabel Breunig, another ring. To her son, Cyril Eugene Murphy, she left a portrait of his father, C. I). Murphy, a crayon portrait of his aunt, Nellie Murphy, and a specified oil painting. The ninth paragraph of the Avill provided: “All the rest of my household furniture, furnishings, carpets, chinaware, siNervare, cutglass and paintings, I give and bequeath to my brothers and sisters (named in another paragraph of the Avill) to be divided equally amongst them,” each to select the articles desired, but, if they were unable to agree as to the division, the executors Avere directed to divide the property into seven parcels of practically the same value, and lots should be cast for the same, respect [158] ively. All tlie residue of her estate, real and personal, was devised and bequeathed to her son, Cyril Eugene Murphy. The husband was appointed as the guardian of Cyril, and was also "nominated as an executor of the will with Henry Breunig. The will was admitted to probate in Platte county. The executors qualified and entered upon the duties of their appointment. O’Shea accepted the provisions of the will in his behalf. He then filed a complete inventory and appraisement “of all the wearing apparel and ornaments and household furniture and other personal property left by the deceased” which he claimed.was allowed to him by law as the surviving husband, and the sum of $200 in money, amounting to a total of $1,996.50, and asked the county court to assign the same to him under the provisions of section 1908, Ann. St. 1907 (Comp. St. 1907, ch. 23, sec. 176). This included all the property specifically bequeathed to others. The county court rejected the claim, and O’Shea appealed to the district court, where the decision of the county court was reversed and the allowance made as claimed. The legatees appeal. The law under which this claim is made is found in the first clause of the section referred to, which is as follows: “When any person shall die possessed of any personal estate or of any right or interest therein, not lawfully disposed of by his last will, the same shall be applied and distributed as follows: First, the surviving husband or wife, if any, and, if there be no surviving husband or wife, then the child or children, if any, of the deceased shall be allowed all the Avearing apparel and ornaments ai d household furniture of the deceased, and all the property and articles that was or were exempt to the deceased at the time of his or her death, from levy or sale upon execution or attachment, and other personal property, to be selected by her, him or them, not exceeding two hundred (200) dollars in value, and this allowance shall be made to such surviving husband or Avife or child or children, if any, as Avell Avhen*he or she or they shall receive provision made in the will of the deceased as when the deceased dies in [159] testate.” O’Shea accepted the provisions of the will by which the land and specific personal property was given him, and it is claimed by the legatees that those provisions placed it within his election to take under the law or under the will, and that, having taken under the will, he could not demand all the personal property specified in the inventory submitted in addition; that it was clearly in contemplation of the testatrix that he should not have both, as the personal property — all of it — was specifically bequeathed to the legatees; and that, having elected, he is bound by his election and must abide by it. This contention is not disputed by appellee as a general proposition of law uninfluenced by legislative action, but it is insisted that the closing portion of the clause above quoted changes the rule, and, in effect, deprives a testator of the right or power to dispose of the property by will otherwise than as the law provides; that the provision that the allowance shall be made “as well when he * * * shall receive provision made in the will of the deceased as when the deceased dies intestate” precludes all idea of election and confers title as a legal right notwithstanding the other provisions of the will in his behalf. There can be no doubt but that it was the intention of the testatrix that the provision made for her husband in the will was all that he should have of the estate. This is made doubly certain, if possible, by the specific bequests to her son, her sister, and relatives of the former husband of the enumerated articles. The only question, therefore, is as to her power to so dispose of her property. As we read the will, and observe that it confers upon the sisters of the deceased husband the ring given the testatrix by him, and to the son the portrait of his deceased father, the mind and conscience revolt and turn away from allowing the effort of appellee to thus ignore the expressed will of his deceased wife from whom he received such liberal provision. The will was, no doubt, made in the firm belief in the integrity of the husband and that he would respect her last wishes, and either decline to accept the provisions [160] made for him and take what the law gave him, or accept those provisions as made. However, this seems to be one of the cases where the provision of the statute may be made to work a hardship and injustice, for there appears-to be no escape from the language of the statute. Many cases are cited by appellants holding that where one entitled to a benefit under a will must, if he claims such benefit, abandon every right the assertion whereof would defeat, even partially, any of the provisions of the instrument, and that it is a maxim not to permit the same person to hold under and against a will, and those rules are recognized and enforced in Godman v. Converse, 43 Neb. 463, but in no case do we find the decision made in the face of a statute similar to the one under consideration. Our attention is called to section 4907, Ann. St. 1907, but we see nothing in that section which would or could modify the clause in section 4903, above quoted. That section simply provides for election, we think, where the testator lias the power to dispose of the property, and the section must be read in connection with section 4903 and the two construed together. By so doing, the property to be allowed the survivor is excluded from section 4907. Taking section 4903 as it reads, and we cannot take it otherwise, it seems to have been the purpose of the legislature to deprive a testator of the right or power to dismantle the home or any part thereof without the consent of the survivor. The case of Brichacek v. Brichacek, 75 Neb. 417, while not decided with reference to the sections under consideration, might shed some light upon the views of the court upon a similar contention. In that case the wife was the owner of two 80-acre tracts of land, one of wliicli was the family homestead. By her will she devised the homestead to her children and the other tract of land to her husband. He accepted the provisions of the will, and claimed his homestead right of a life estate in the home and the fee title to the other tract. We held that he was entitled to both, as the law gave him his homestead right of which he could not be divested except by his own act, and that there was [161] no requirement that he should elect, and that his acceptance was not an election. The principle involved in the two cases is practically the same. It follows that the judgment of the district court will have to be affirmed, which is done. Affirmed.