In re the Appeal of Little

Miner, J. It appears from tbe record that James T. Little died in 1898, leaving a will. The inventory shows that the estate consisted of about $45,000 in personal property, and $40,000 in real estate. The estate was solvent and out of debt. By his will James T. Little bequeathed to his four children $10,000 each, and to other parties smaller sums amounting in all to $47,000. The balance of his estate, both real and personal, was devised and bequeathed to his wife and four children in equal parts to share and share alike, after all other bequests and expenses were paid. All the personal property and furniture in the homestead, occupied by the deceased, was also bequeathed to his widow without inventory and without charge. A child was born after the testator’s death. The widow declined to accept under the provisions of the will, and before distribution filed her petition asking that the household goods, one-third in value of all legal and equitable estate in the real property possessed by the deceased at the time of his death, one-third of all the personal property, and the homestead where the deceased resided be set off to her. The court decreed to the widow one-third of all the legal and equitable real estate property, but no personal property or homestead right. The widow appeals from this decree. The question for determination is whether the widow is entitled to one-third of all the personal property in addition to one-third of the real estate allowed her by the decree, and also whether she is entitled to the homestead, and the personal property situate therein. The question involves the construction of certain sections of the revised statutes of 1898, which differ materially — 211 — from those of 1888. These provisions of the statute, so far as material here, read, as follows : “Sec. 2131. Who may make a will. Married man limited. Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his estate, real and personal, and such estate not disposed of by will is succeeded to as provided in chapter four of this title, being chargeable in both cases with the payment of all the decedent’s debts as provided by law; provided, that a married man shall not devise away from his wife more than two-thirds in value of his legal or equitable estates in real property without her consent in writing. Sec. 2826. Wife’s interest in husband’s real property, one-third in value of all the legal or equitable estates in real property possessed by the husband at any time during the marriage, and to which the wife had made no relinquishment of her rights, shall be set apart as her property in fee simple if she survive him. * * * The value of such part of the homestead as may be set apart to the widow shall be deducted from the distributive share, provided for her in this section. In cases wherein only the heirs, deyisees, and legatees of the decedent are interested, the property secured to the widow by this section may be set off by the court in due process of administration. Sec. 2827. When widow to elect between will and d istributive share. If the husband shall make any provision by will for the widow, such provision shall be construed to be in lieu of the distributive share secured by the next preceding section, unless it shall appear from the will that the decedent designed the testamentary provision to be additional to such distributive share, in which case the widow shall be presumed to have accepted both' such testamentary provision and such distributive share. If, how — 212 — ever, it does not appear from the will that its provision for the widow is additional, then the widow shall be conclusively presumed to have renounced such provision, and to have accepted her distributive share, unless within four months after the admission of the will to probate,' or within such additional time before distribution as the court may allow, she shall, by written instrument filed with the clerk of the court, accept the testamentary provision, which acceptance shall be construed to be a renunciation of her distributive share. * * * Sec. 2828. Succession. When any person having title to any estate not otherwise limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this title, or in the probate code, subject to the payment of his debts, in the following manner: 1. * * * If the decedent leave a surving husband or wife, and more than one child living, or one child living, and the issue of one or more children, one-third to the surviving husband or wife, and the remainder in equal shares to his children, and to the issue of any deceased child, by right of representation; * * * provided, that the share in the legal and equitable estates in real property .of which an intestate husband died possessed, secured by this section to his widow, shall not be additional to the interest in such estates provided for her in section twenty-eight hundred and twenty-six. Sec. 2829. Homestead exemption. Debts. A homestead consisting of lands and appurtenances not exceeding in value the sum of two thousand dollars, and two hundred and fifty dollars additional for each minor child, together with all the personal property exempt from execution, shall be wholly exempt from the payment of the — 213 — debts of the decédent, and shall be the absolute property . of the surviving husband or wife and minor children, or of the minor children in case there be no surviving husband or wife, to be set apart on petition and notice, at any time after the return of the inventory; provided, that the homestead selected shall be subject to ■ any incum-brances given for the purchase price or by the consent of both husband and wife, and to mechanics’ liens. This section shall not be construed to prevent the disposition by will of the homestead and exempt personal promptly. The provisions of the statute, governing the descent, succession and distribution of estates of deceased persons and homestead rights are, to a certain extent, enigmatical. Statutes enacted to supply rules for the distribution and succession of the property of the people of a state should he framed with less obscurity and doubt, and not. be allowed to depend so much upon judicial interpretation. TLe question presented is a new one in this state, and our statutes are not sufficiently identical with those found elsewhere, to make the adjudications of other courts of much assistance. In fact no case is cited that bears directly upon the question in issue here. Our opinion is that Section 2731 empowers the testator to dispose of all his real and personal property by will, except that being a married man he cannot legally devise .away from his wife more than two-thirds of his legal and equitable estate in real property, without his wife’s consent in writing. In other respects the statute gives the husband absolute power over his real and personal property by will. This privilege to dispose of one’s property by will is not a natural right, but depends upon positive law. The right is within the control of the law-making power. The legislature may give or take away the right to dispose of — 214 — one’s estate by will. In this case such right to devise his property by will was given by statute. Evans v. Price, 118 U. S. 593, 599. While Sec. 2829, in terms, gives absolutely, property in the homestead and exempt personal property to the surviving husband or wife, yet by other terms of the section this power is limited, and the husband may dispose of it by will, and under section 2826 the value of such homestead set apart to the widow, if any, shall be deducted from the distributive share provided for her in that section. This right to dispose of such homestead property, however, by will, is limited to such estates as exceed the homestead limit in value, under the ruling of this court in Knudsen v. Hannberg, 8 Utah, 203. The statutes of this state have been materially changed in this respect since Knudsen v. Hannberg, supra, was decided, but in respect to the point mentioned, the opinion is still applicable to the statutes now in force. The syllabi in that case, however, is inaccurate. The word “solvent” in the third line from the bottom of the first paragraph should read “insolvent.” Under Section 2825, if no will is made the 'real and personal property passes to the heirs subject to the control of the court and possession of the administrator, etc. Under Section 2826 one-third of the legal and equitable estate in the property of the husband, in which the wife has made no relinquishment, must be set aside as her property in fee simple, if she survive him; but the value of such part of the homestead as may be set aside to the widow under Section 2829 must be deducted from her distributive share.of the real estate falling to her under Section 2826, provided the estate is solvent and above the homestead allowance in value, but the homestead right would attach in favor of the widow and children if the — 215 — estate was insolvent or below the homestead limit in value, as held in Knudsen v. Hannberg, supra. In this case the estate is solvent and out of debt. Hence the value of such part of the homestead as may be set aside to the widow should be deducted from her distributive share as provided in Section 2826. The testator disposed of all his real and personal property by will. It does hot appear from the will that the decedent designed the testamentary provision for the widow to be in- addition to her distributive share under Section 2826. Under the provisions of section 2827 the widow duly renounced the provision made for her in the will, and elected to take her share of the estate under the provisions of the statute providing for succession. Had no will been made, the widow under section 2828, would have been entitled to one-third of the real and personal property; hut as we have seen, the husband had an absolute right under section 2731 to dispose of all of his property by will except one-third of the real estate as stated. Therefore she cannot claim as distributee of her husband’s personal estate, when he has fully disposed of the same by valid will. The widow’s election or renunciation of her right under the 'will does not nullify the will as to other bequests, nor take from the legatees named therein their rights thereunder. Except as to the widow, who renounces it, the will is operative and binding. Having renounced the provisions of her husband’s will in her favor the law determined and fixed what estate she would take. Gullet v. Farley, 164 Ill. 566; In re estate of Jacob Davis, 36 Ia. 24; Smith v. Baldwin, et al., 2 Ind. 403; In re Frost’s Estate, 1 N. Y. S. 340; Woerner on Admn., pp. 269-270. Our conclusion is that having renounced the will the widow is not entitled to any of the bequests of personal — 216 — property contained therein, nor to one-third of the personal estate, but should be allowed her distributive share of the real estate by succession under Sec. 2826 R. S. 1898, as decreed by the district court. The judgment of the district court is affirmed, Avith costs. Baskin, J. concurs. .Baetcii, C. J. dissents.