Ferguson v. Holborn

BEAN, J. Plaintiffs contend that Anna Ferguson was put to her election to take either under the will or her statutory right of homestead by reason of the fact that the will gave her a life estate in all the prop — 571 — erty of the deceased; that the conduct of Anna Ferguson in qualifying as executrix of the will, and bringing the suit to construe the will and for all of the property, amounted to an acceptance of the will and an election to take under the will; that the order of the County Court setting off the homestead was obtained by fraud upon the court by reason of the failure to disclose to the court the existence and status of the suit. The defendants claim that title to the property in question passed to Anna Ferguson under the homestead exemption statute by virtue of the decree of the County Court setting aside the property to her as a homestead as her property; and that the devisees of Anna Ferguson, deceased, are the owners in fee of the real estate. We will hereafter refer to the devisees of Anna Ferguson, deceased, as the defendants. As stated in plaintiffs’ brief, there is but one ultimate legal question to be determined. That is, whether Anna Ferguson was compelled to and did make an election to take under the terms of the will. It seems the ruling upon the demurrer to the answer, and the force of the decree of the County Court are embraced in, or governed by, the same question. It appears to be conceded by all the parties that under the statute the house and lot constituted the homestead of William H. Ferguson, and was the actual abode of himself and wife immediately prior to his death; that his widow was entitled to such homestead, unless she made an election to take under the will and was thereby precluded from claiming the homestead. 1. It will be noticed that William H. Ferguson died in 1913. Therefore, Chapter 112, General Laws of 1919 (Sections 221-226, Or. L.), changing the home — 572 — stead exemption law, and the opinion in Leet v. Barr, 104 Or. 32 (206 Pac. 548), do not apply to this case. Sections 221-226, L. O. L., together with Section 1234, L. O. L., before the 1919 amendments, as construed by the opinions under those sections, govern the present case. Under the latter sections the right of the surviving widow, where there are no minor children, to the statutory homestead is paramount to the right of the deceased husband of such homestead by will. Any devise by which the husband attempts to convey the homestead to other persons, by will, to take effect after his death, is void as against the claim of the widow to have the property set aside to her. In re Frizzell’s Estate, 95 Or. 681, 688, 689 (188 Pac. 707); Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902). In 1 Woerner on Law of Administration (2 ed.), Section 94, quoted by Mr. Justice Bennett in the Frizzell case, we read: “The right of the surviving widow and minor children to the homestead premises, is obviously paramount to that of the deceased husband or father to dispose of them, else it would be in his power to defeat the intent and purpose of these laws. Hence a testamentary disposition of the homestead estate, inconsistent with the rights of the surviving family, is void. ’ ’ 2. Where the widow, as in the present case, by the terms of the will is only given a life estate in all or part of the lands of the estate, she is not put to an election to take either under the will or her statutory right of homestead, but she may take both: In re Gray’s Estate, 159 Cal. 159 (112 Pac. 890); In re Huelsman’s Estate, 127 Cal. 275 (59 Pac. 776); In re Whitney’s Estate, 171 Cal. 750 (154 Pac. 855); Roundtree v. Montague, 30 Cal. App. 170 (157 Pac. 623); McGowan v. Baldwin, 46 Minn. 477 (49 N. W. 251). — 573 — William H. Ferguson, the testator, did not devise the whole property specifically, hut employed general words of description and donation in his will. In 1 Pomeroy’s Equity Jurisprudence (4 ed.) Section 489, we read: “Prima facie a testator is presumed to have intended to bequeath that alone which he owned, — that only over which his power of disposal extended. Wherever, therefore, the testator does not give the whole property specifically, but employs general words of description and donation, such as ‘ all my lands, ’ and the like, it is well settled that no case for an election arises, because there is an interest belonging to the testator to which the disposing language can apply, and the prima facie presumption as to his intent will control. ’ ’ 3. The conduct of Anna Ferguson in qualifying as executrix and bringing the suit for the construction of the will did not amount to an election to take under the will only. Inference of election from conduct can only take place when the party has full knowledge of all the facts, and of her right of election: In re Iltz’s Estate, 104 Or. 59 (202 Pac. 409, 206 Pac. 550); In re Smith’s Estate, 108 Cal. 115 (40 Pac. 1037); Hodgkins v. Ashby, 56 Colo. 553 (139 Pac. 538, 542). In 1 Pomeroy’s Equity Jurisprudence (4 ed.), Section 515, it is said: “To raise an inference of election from the party’s conduct merely, it must appear that he knew of his right to elect, and not merely of the instrument giving such right, and that he had full knowledge of all the facts concerning the properties. As an election is necessarily a definite choice by the party to take one of the properties and to reject the other, his conduct, in order that an election may be inferred, must be' done with an intention to elect, and must show such an intention. * * ” — 574 — In 1 Jarman on Wills (6 ed.), page 470, it is stated: “In order to presume an election from the acts of any person, that person must he shown to have had a full knowledge of all the requisite circumstances, as to the amount of the different properties, his own rights in respect of them, etc.; and a person having elected under a misconception is entitled to make a fresh election. * * ” There is nothing in the will of William H. Ferguson, deceased, to indicate that he intended the devise of the life estate to his wife to be in lieu of any rights which she might acquire under the statute making provisions for a homestead to be set off to her as her property. Neither is there in that testament any language designed to put the widow to her election, nor can any direction to make an election be implied therefrom: McDermid v. Bourhill, 101 Or. 305 (199 Pac. 610); Sulzberger v. Sulzberger, 50 Cal. 385. The rule in regard to an election to take under a will is stated in 29 C. J., page 999, Section 483: “Although the courts of some states have reached the contrary conclusion, in most jurisdictions, if the testator devises a portion of his estate to his widow in lieu of what the law may give her and she accepts it, her statutory rights of homestead are thereby destroyed; but if the will does not state that its provisions for the widow are in lieu of homestead, it has been held that an election to take under the will does not deprive her of homestead, .unless it clearly appears from the will that such was the intention of the testator.” See also In re Gray’s Estate, 139 Cal. 159 (112 Pac. 890); Herrick v. Miller, 69 Wash. 456 (125 Pac. 974); Rountree v. Montague, 30 Cal. App. 170 (157 Pac. 623, 627). After the death of William H. Ferguson, Mrs. Ferguson, acting under the advice of learned counsel, — 575 — apparently believed from an examination of the will that the words therein reading thus: “After her death to my legal heirs at law, ’ ’ referred to her as his only heir at law, as there were no children. Therefore, she in good faith brought a suit in the Circuit Court for the construction of the will claiming title in fee to all of the real estate. This suit, as the trial court found, in effect, was brought under a mistaken belief. She did not have a remedy in the suit instituted by her to obtain title in fee to the real estate under the terms of the will. The truth of this was established by the decree in that suit, which has become final: Rehfield v. Winters, 62 Or. 299, 306 (125 Pac. 289). Consequently, her alleged choice of that remedy “was not an election but an hypothesis”: Northern Assur. Co. v. Grand View Building Assn., 203 U. S. 106, 108 (51 L. Ed. 109, 27 Sup. Ct. Rep. 27, see, also, Rose’s U. S. Notes). To the same effect see also, Bierce v. Hutchins, 205 U. S. 340, 347 (51 L. Ed. 828, 27 Sup. Ct. Rep. 525). As stated in Friend v. Talcott, 228 U. S. 27, 37 (57 L. Ed. 718, 33 Sup. Ct. Rep. 505), “it is impossible to conceive of a right of election in a case where no such right existed. ’ ’ This rule obtains in this state: Morris v. Sheridan, 86 Or. 224 (167 Pac. 593); Oregon Mill & Grain Co. v. Hyde, 87 Or. 163, 177 (169 Pac. 791); Rehfield v. Winters, 62 Or. 299, 305 (125 Pac. 289). We quote the language of Mr. Justice McCourt’s opinion, in In re Iltz’s Estate, 104 Or. 59 (202 Pac., pp. 413 and 414): “Before the waiver of a legal right results, ‘There must be both knowledge of the existence of the right and an intention to relinquish it.’ Fairview R. R. Co. v. Spillman, 23 Or. 587-592 (32 Pac. 588); Parker v. Hood River, 81 Or. 707-710 (160 Pac. 1158); and 27 R. C. L., pp. 908-910.” “ * * The two rights mentioned are not alternatives or substitutes; consequently the doctrine of election — 576 — does not apply in respect thereto. If it did, still no election would be presumed in view of appellant’s ignorance of her right to a homestead and absence of intention upon her part to relinquish the same; no rights of third parties having intervened.” 20 O. J., page 21, Section 17, reads thus: “An election can exist only where there is a choice between two or more inconsistent remedies actually existing at the time the election is made. Hence the fact that a party misconceives his right, or through mistake attempts to exercise a right to which he is not entitled, or prosecutes an action based upon a remedial right which he erroneously supposes he has, and is defeated because of such error, does not constitute a conclusive election, and does not preclude him from thereafter prosecuting an action based upon an inconsistent remedial right. A party does not have two remedies between which he must elect where there is a valid defense to one of them, as where the remedy first sought is defeated by laches or the statute of limitations, although there are decisions inconsistent with this rule. The general rule as to the effect of pursuing a remedy to which a party is not entitled is not in conflict with the rule that one having a choice to two inconsistent remedies is bound by his election, and where a party does in fact have two inconsistent remedies at his command the foregoing rule as to mistake of remedy does not apply.” Under our statute existing at the -time of the death of the testator, as construed by this court, where William H. Ferguson left a surviving widow he did not have a devisable interest in the homestead property. Mrs. Ferguson, in so far as the will in question may be claimed to affect her homestead right, in seeking a judicial construction of the terms of the will, was pursuing a phantom according to the adjudication in the former suit. 4. In order for the doctrine of election to apply there must be at least two inconsistent rights' or in — 577 — terests to select from. Where only one right exists, and the other is a mere supposed right, there is no choice to be made, and the doctrine of election does not apply. After the decree in the former suit Mrs. Ferguson applied to the County Court of Union County and had the homestead property set apart to her as her property. Thereupon the fee-simple title to the property vested in her: In re Iltz’s Estate, 104 Or. 59 (202 Pac. 409-412); In re Frizzell’s Estate, 95 Or. 687-689 (188 Pac. 707); Wycoff v. Snapp, 72 Or. 234 (143 Pac. 902). She was not precluded by the former suit or decree from making such application and obtaining the result. Her prosecution of the former suit did not mislead, or prejudice the right of anyone: Waggoner v. Waggoner, 111 Va. 325 (68 S. E. 990, 30 L. R. A. (N. S.) 644, and note). Her claim to the fee-simple title to the homestead was not inconsistent with her claim to such title to the whole property. The right of homestead of Anna Ferguson was not mentioned or litigated in the former suit. 5. The trial court found, and we concur therein, that there was no fraud in Mrs. Ferguson petitioning to the County Court for the order setting aside the homestead. The former decree of the Circuit Court did not prevent her from so doing. Therefore it was unnecessary for her to inform the County Court in regard to the suit. 6. Section 1234 does not require a citation to the heirs or devisees under the will in order to give the County Court jurisdiction to set aside the exempt-property. It was a part of the proceedings in the regular administration of the estate and all parties are bound by it without personal notice. In re Friz — 578 — zell's Estate, 95 Or. 681, at page 689 (188 Pac. 707, 710), Mr. Justice Bennett said: “There is a question made as to whether the probate court had jurisdiction to set aside this.property, in the absence of a specific citation served upon the devisees under the will; but we see no reason why there should be such a citation in the matter of the setting aside of real property, any more than there would be a necessity of a citation to the heirs, if personal property were to be set aside, and we think this has never been the practice.” 7. An estate' for life in real property may, under certain conditions, be merged in a fee-simple title to such real estate; but our statute does not provide any mode for a homestead title in fee, to be merged in or swallowed up by a life estate. The setting aside of the homestead did not destroy the devise in the will either of the life estate, or the devise of the remainder to collateral heirs, as there was real property of the estate other than the homestead to which the will applies. We thiuk the opinions cited on behalf of plaintiffs in a carefully prepared brief, which seem to announce a different rule in such cases, are under statutes differing from ours. It follows that the decree of the Circuit Court should be affirmed. It is so ordered. Aeeirmed. Rehearing Denied.