Hardy v. Richards

Anderson, J., delivered the opinion of the court. Cornelius Hardy died testate, leaving as his sole heir his widow, Mrs. S. 'B. Hardy, who is a non compos mentis, for whom the appellee, D. B. Richards, was appointed guardian, who, for said widow, renounced the will of her deceased husband, which renunciation the chancery court by decree approved, from which decree the appellant, T. W. Hardy, executor, and one of the legatees, under the will, appeals to this court. By this will Corne [633] lius Hardy provides that the appellant, a second cousin, . should be executor without bond, and have the power to sell any or all of his estate, and make conveyances, and reinvest the proceeds of such sales into other property; that certain of his kinspeople should receive legacies in minor amounts, and the remainder of Ms estate held in trust by the appellant, and the income therefrom expended in keeping up Ms- estate, and supporting and maintaining his widow during her widowhood or lifetime; that in the event of her marriage or death the appellant should have his entire estate, with its accumulations, except the minor legacies referred to above. The amount of the estate at the death' of the decedent, which occurred on December 13, 1908, was more than thirty thousand dollars. The widow was fifty-two years old at the time of the death of her husband, and had been in the insane asylum for some years, but had not been regularly declared insane. • Within six months after the death of her husband, and after his will had been probated, on a writ of de lunático inquirendo she was duly declared a lunatic, and the appellee, Richards, was by the chancery court appointed her guardian, and filed in the chancery court of Lowndes county, where the will had been probated and where the guardianship was pending, a renunciation of the will, substantially in the language of section 5086, Code of 1906, showmg that it was *by the guardian for the widow.- After making such renunciation, the guardian filed an application to the chancery court of Lowndes county, reciting the action taken by him, and asMng the approval of the court. The appellant thereupon appeared to such application and filed an answer, contesting the right of the guardian to make such renunciation. There was- a hearing on this issue, on oral testimony taken by agreement in open court, resulting in a decree by the court ratifying and approving the action of the guardian in making the renunciation. [634] It is contended on' behalf of appellant that the guardian of a widow who is non -compos mentis, with the approval of the court having jurisdiction of the ward, cannot exercise for her the right of election given by section 5086, Code of 1906> not to take under the will of her husband. The provision of the statute referred to, authorizing the wife to renounce the will of her deceased husband, is in this language: “When a husband makes his last will and testament, and does not make satisfactory provision therein for his wife, she may, at any time within six months after the probate of the will, file in the office where probated a renunciation to the following effect, viz.: ‘I, A. B., the widow of O. D., hereby renounce the provision made for me by the will of my deceased husband, and elect to take in lieu thereof my legal share of his estate;’ and thereupon she shall be entitled to such part of his estate, real and personal, as she would have been entitled to if he had died intestate, except that, even if the husband left no child nor descendant of such, the widow, upon renouncing, shall be entitled to only one-half of .the real and personal estate of her deceased husband.” This is a question of first impression in this state. It is claimed that the election authorized by the statute must be the result of the personal judgment of the widow, and therefore, where she is incapable of exercising such judgment, there can be no election; and there is support for this contention in Lewis v. Lewis, 29 N. C. 72, and Crenshaw v. Carpenter, 69 Ala. 572, 44 Am. Rep. 539. But in neither of those cases was the question determined whether the court having jurisdiction could make the election for her, or sanctioned such election made by her guardian. The better authority is that the election may be made by the guardian with the sanction of the court. Andrews v. Bassett, 92 Mich. 449, 52 N. W. 743, 17 L. R. A. 296; 11 A. and E. Ency. Law (2d Ed.), 79. The latter authority states the rule thus: “An insane widow [635] not being competent to elect, and the right of election being purely personal to herself, the election cannot, in the absence of a statute authorizing it, be made by her guardian or committee, except with the sanction of the court. The court of the domicile having jurisdiction of the widow will make the election for her.” In the Andrews case, the election was made by the guardian with the sanction of the probate court having jurisdiction of the ward. There is not one law for a sane and another for an insane widow. Nor is the contention sound that, if an election may be made, it can only be by a bill in chancery invoking the equity jurisdiction of the court, making all interested persons parties. Section 159’ of the Constitution of 1890, by subdivision “e” confers on chancery courts jurisdiction in “cases of idiocy, lunacy, and persons of unsound mind. ’ ’ Such unfortunates, by the Constitution and statutes of this state, are made the wards of the chancery court. The election made by the widow when sane is an ex parte proceeding; and when made by the guardian with the sanction of the court, there is no reason for it being otherwise. The right of election given by the statute is absolute. It is incontestable by either devisees, legatees, heirs, or creditors. They have no interest known to the law which would entitle them to be made parties and contest the right. Andrews v. Bassett, supra, is directly in point on this proposition, as shown by the facts set out in the report of it in Bassett v. Durfee, 87 Mich. 167, 49 N. W. 558, where it was first before that court on mandamus. It is argued that the chancellor was manifestly wrong in his finding of fact that it was to the interest of the widow to elect not to take under the will of her husband, and in approving the election made by the guardian for her. In our judgment, such finding by the chancellor is amply supported by the testimony, and we decline to disturb it. Affirmed.