The language of the will may, however, indicate a clear intention of the testator either way, e. g., "in full settlement of all demands upon my estate" (barring the statutory share), Burke v. Colbert, 144 Mass. 160; or "in lieu of all interest in my estate which she might have as my widow" (barring her statutory allowance), Langley v. Mayhew, 107 Ind. 198; or in lieu of dower "and her rights as widow" (barring her exemption), Young v. Hicks, 92 N. Y. 235; or in lieu of "dower, thirds and all other interest in my estate" (barring her interest in property not disposed of), Lee v. Tower, 124 Mass. 370; or in lieu of dower " or any other claim against my estate" (barring a 'debt to the wife for her moneys taken by him to invest), Rusling v. Rusling, 15 Stew. (N. J.) 594; although a similar expression has been held not to bar her claim as mortgagee under a mortgage made before her marriage as part of an ante-nuptial settlement, Russell v. Minton, 15 Stew. (N. J.) 123; or “in full satisfaction of her dower or thirds, which she may in any wise claim or demand (barring her share in lapsed legacies), Matter of Hodgman, 140 N. Y. 421, affg. 69 Hun. 484; or" after my wife has taken her portion according as the law provides (not barring such share), Burkhalter v. Burkhalter, 88 Ind. 368; or a bequest of "the amount now allowed her by law out of my estate" (not barring her interest as heir in a lapsed residuary share), Johnson v. Johnson, 32 Minn. 513; or "on condition that she renounce all claim against my estate" (not barring her right to community property). Estate of Mumford, Myrick's Prob. 133. But, in Pennsylvania, a devise of one-third of testator's whole estate for life in lieu of dower is a complete disposition of the estate as to the widow, and leaves her no interest in the rest of the estate, though not otherwise dis posed of. Jackson's Appeal, 126 Pa. St. 105. In some states the acceptance of the testamentary provision also bars the widow's homestead right, Wilson v. Fridenburg, 19 Fla. 461; Brokaw v. McDougall, 20 Id. 212; Hickson v. Bryan, 41 Ga. 620; Stunz v. Stunz, 131 Ill. 210; Meech v. Meech, 37 Vt. 414; especially where it is expressly in lieu of dower "and all other rights, interests, and claims," Cowdrey v. Hitchcock, 103 Ill. 262; or where the homestead is expressly devised to another. Gorham v. Dodge, 122 Ill. 528. But, in Missouri, the testator cannot put his widow to election as to her homestead right. Missouri (R. S. § 2693); Kaes v. Gross, 92 Mo. 647, overruling Davidson v. Davis, 86 Mo. 440. Effect of dissent. The widow's election not to take under the will supersedes the will as to her. A conversion, therefore, which is to be made by direction of the will does not take effect as to her, Brink v. Layton, 2 Redf. 79; Barnett v. Barnett, 1 Met. (Ky.) 254; Hoover v. Landis, 76 Pa. St. 354; Armstrong v. Park, 9 Humph. 195; although the power of sale may be exercised and the conversion remain effective as to other parties interested. Sullivan v. Kieffer, 122 Pa. St. 135. So, she cannot take a life interest under the will in the property not taken by her under her adverse claim of dower. Fox v. Rumery, 68 Me. 121. In like manner a specific appropriation of funds by the testator for her will not inure to her benefit on her election of a distributive share as in the case of intestacy. Morris v. Garland, 78 Va. 215. She need not, however, relinquish an independent trust for her children vested in her by the will. Rittgers v. Rittgers, 56 Ia. 218. At common law, and in the absence of further statutory provisions, the widow electing not to take under the will is entitled to her dower only, and not to any share in the personal property. Matter of Vowers, 45 Hun 418; Perkins v. Little, 1 Me. 148. By statute, if she renounces the testamentary provision, she takes both dower and her share as in case of intestacy of the personal property, in Alabama (1886 Code, 1963), Arkansas (1884 Dig. Stats. §§ 2591, 2595); and her homestead also, in Wisconsin (1889 An. Stats. § 2172). In Colorado (1891 An. Stats. § 3011), the surviving wife may elect to take onehalf of the real and personal property, after the debts are all paid. Hanna v. Palmer, 6 Col. 156. In Connecticut (1888 G. S. § 623), a wife married since 1877 takes one-third of the real and personal property for life. In Illinois (1891 R. S. c. 41, §§ 10, 12), she takes her dower and one-third of the personal property, or if there are no children, one-half; and if the husband is illegitimate and has no legal heirs, the whole estate. Evans v. Price, 118 Ill. 593. In Indiana (1888 R. S. §§ 2490, 2505), one-third of the real property absolutely. If there are no children or parent, she also takes all the property undisposed of by the will, but this will not reach a share of the estate which is bequeathed to others, if she elects against the will. Morris v. Morris, 119 Ind. 341. In Iowa (1888 R. C. §§ 2440, 2452), she takes one-third in value of the entire estate unless she expressly consents to the will. Ward v. Wolf, 56 Ia. 465; Baldozier v. Haynes, 57 Ia. 683; Potter v. Worley, Id. 66. In Maine, since the act of 1835, the widow takes her share of the personal property also as in case of intestacy, Brown v. Hodgdon, 31 Me. 65. In Maryland (1888 P. G. L. Art. 93, §291), if she elects against a devise of real property, she takes her dower, and if against a bequest, she takes her distributive share in the personal property. In Massachusetts (1882 P. S. c. 127, § 18, act of 1861), her share in both real and personal property as in case of intes tacy, in the personal property up to $10,000 absolutely, and above that sum for life, the income of such excess running from testator's death, Pollock v. Learned, 102 Mass. 49; but the $10,000 carrying interest only from the date of the order for its payment. Atherton v. Corliss, 101 Mass. 40. This share is determined not by the law of distributions in force when the act providing for election was passed, but by that which was in force at the time of testator's death. Cochran v. Thorndike, 133 Mass. 46. In Michigan (1882 An. Stats. §§ 5847, 5824), she takes dower, and homestead, and her exemption in the personal property, and her intestate share of the personal property up to $5000, and above that one-half of such share. In New Hampshire (1891 P. S. c. 195, §§ 10, 11), she takes dower, homestead, and distributive share of the personal property, and may take one-third of the real property absolutely, or, without dower and homestead, one-half of the real property. Such share is subject to charges existing against the property in the hands of the testator, Copp v. Hersey, 31 N. H. 317; and to his debts, Hall v. Smith, 59 N. H. 315; but not to other provisions of his will. Id. In North Carolina (1883 Code, § 2116), she takes in addition to her dower her distributive share in the personal property and a year's support for herself and children. In Ohio (1890 R. S. § 5964), she takes her quarantine and allowance in any case. In Pennsylvania (1883 Purd. Dig. 631, SS 4, 5), she takes, besides her dower, a share of the personal property as in case of intestacy, Anderson's Appeal, 36 Pa. St. 476; and her right to the property vests at the time of election, although she dies before its amount is ascertained. Greiner's Appeal, 103 Pa. St. 89. In Tennessee (1884 Code, § 3251), she takes, besides her dower, her share of the personal property as in case of intestacy (one third, or a child's share). In Vermont (1880 R. L. § 2108), she takes her exempt property and her distributive 'share of the personal property as in case of intestacy. Effect of Dissent on others. The widow's renunciation of the will accelerates a remainder limited after a life estate to her. Brown v. Hunt, 12 Heisk. 404; Wood v. Wood, 1 Met. (Ky.) 512; Bailey v. Bailey, 97 N. Y. 460; Sarles v. Sarles, 19 Abb. N. C. 322; Capron v. Capron, 6 Mackey 340; Fox v. Ferguson, 138 Pa. St. 208; Witherspoon v. Watts, 18 S. C. 396. Her right of election does not, however, make the remainder over contingent. Marvin v. Ledwith, 111 Ill. 144. And her dissent will not accelerate the time for distribution fixed to take place at her death, both the remaindermen having already died. Blatchford 'v. Newberry, 99 Ill. 11. If she renounces an annuity charged on land devised to others, it will inure to the benefit of the devisee by discharging the lands, Armstrong v. Park, 9 Humph. 195; and the annuity will not be preserved at his expense to compensate a disappointed residuary legatee. Stewart's Appeal, 110 Pa. St. 410. But where the net income of the estate is devised in equal shares to the widow and three other persons, her share on its renunciation by her will not go to her colegatees, Ford v. Ford, 70 Wis. 19. But a devise to the wife and daughter will remain valid as to the daughter. Dean v. Hart, 62 Ala. 308. Other priorities created by the will, e. g., between general and residuary legatees, will be left undisturbed. Estate of Vance, 141 Pa. St. 201; Jones v. Knappen, 63 Vt. 391. But if the life estate renounced by her is needed to compensate other devisees for lands taken by her, it will be so applied rather than to the re mainderman exclusively, Wallace v. Wallace, 15 W. Va. 722; Hauk v. McComas, 98 Ind. 460; Jones v. Knappen, 63 Vt. 391; the equities between the other devisees being left to be settled on the accounting. Estate of Evans, 150 Pa. St. 212. And a disappointed devisee may have the personal assets marshaled for his relief. Gallagher's Appeal, 87 Pa. St. 200. And where his original interest was a remainder in one-third of the estate after the widow's death, and the other interests in remainder have been released on cash payment, the entire balance of the estate may be paid over to him after deducting the widow's share. Estate of Batione, 136 Pa. St. 307. Where she is entitled to a distributive share of the personal property, general legacies will abate for it pro rata, Capron v. Capron, 6 Mackey 340; and in Colorado, general devises (to anyone "not an heir") abate with general legacies. Logan v. Logan, 11 Col. 44. Where the widow takes her third of the real estate against the will, it will cause the rents devised to children to abate proportionally. Heineman's Appeal, 92 Pa. St. 95. The property devised to the widow and renounced by her is not the primary fund for compensation, but all must abate ratably. Witherspoon v. Watts, 18 S. C. 396. But it has been held that the share taken by her against the will will be taken out of the half bequeathed to her for life, with remainder to her daughter A., rather than out of the other half bequeathed absolutely to her daughter B. Hoskins v. Hoskins, 43 Ia. 452. And if the homestead is taken by her as part of her dower lands, a third person to whom the homestead was devised will not be compensated out of other assets of the estate. Gainer v. Gates, 73 Ia. 149. *SECTION X. Of the refunding of legacies.t Under certain circumstances, legatees are bound to refund their legacies, or a ratable part of them. It will, perhaps, be most convenient to consider, 1st, In what cases the executor can compel a legatee to refund; 2ndly, In what cases a creditor has that right; 3rdly, In what cases one legatee can make another refund: It will be observed, however, that the two latter of these inquiries are not properly within the scope of this treatise. 1st. When the ex ecutor can make a legatee refund. 1st. In what case the executor can compel a legatee to refund. The general rule on this subject was laid down by Sir John Strange, M. R., in Orr v. Kaines (w): "Whenever an executor pays a legacy, the presumption is, that he has sufficient to pay all legacies, and the Court will oblige him, if solvent, to pay the rest; and not permit him to bring a bill to compel the legatee, whom he voluntarily paid, to refund" (x). But where the payment of the legacy by the executor is under the compulsion of a suit, he is entitled to compel the legatee to refund, in case of a deficiency of assets (y). Again, if the executor pays away the assets in legacies, and afterward debts appear, of which he had no previous notice, and which he is obliged to discharge, he may compel the legatees to refund (z). But an executor cannot compel residuary legatees to refund if he has "paid over the assets with a notice of a debt” (a). *It seems that, formerly, legatees used to give security to the executor for refunding, if the assets should prove insufficient (b). In Livesey v. Livesey (c), an annuity was bequeathed to a legatee, but he was not entitled to it until he attained twenty-one: The execu + See American note at end of this Section. (w) 2 Ves. Sen. 194. (x) See also Coppin v. Coppin. 2 P. Wms. 296. (y) Newman v. Barton, 2 Vern. 205. Noel v. Robinson, 2 Ventr. 368. (2) Nelthorpe v. Biscoe, 1 Chanc. Cas. 136. Davis v. Davis, 8 Vin. Abr. 423, tit. Devise (Q. d.), pl. 35. 1 Rop. Leg. 398, 3rd edit. Doe v. Guy, 3 East, 120, 123, per Lord Ellenborough. (a) Jervis v. Wolferstan, L. R. 18 Eq. 18. A notice, however, of a possible trix, by mistake, made payments to the legatee in respect of his annuity for two years before he attained that age: And it was holden that the executrix was entitled to retain them out of the future payments of the annuity (d). 2nd. When a 2. In what case a creditor of the testator can call on a legatee to refund. Where the testator's funds at the time of his death are not sufficient to pay both debts and legacies, creditor can make a legatee refund. it is clear that an unsatisfied creditor can compel a satisfied legatee to refund, whether the legacy was paid to him voluntarily or by compulsion (e): and he has the same right, *although the testator's funds at the time of his death were sufficient to pay both debts and legacies (ƒ); and although the assets were handed over to the legatee by the personal representative in ignorance of the creditor's demand (g). (d) See also Cooper v. Pitcher, 4 Hare, 485. (e) Hodges v. Waddington, 2 Ventr. 360. Noel v. Robinson, 1 Vern. 94. Anon. 1 Vern. 162. Newman v. Barton, 2 Vern. 205. Gillespie v. Alexander, 3 Russ. Ch. C. 136, 137, by Lord Eldon. March v. Russell, 3 M. & Cr. 31. Noble v. Brett, 24 Beav. 499. Jervis v. Wolferstan, L. R. 18 Eq. 18, 25. Hunter v. Young, 4 Ex. D. 256, 261. An unpaid creditor has not lost his right to compel a satisfied legatee to refund even though such creditor may be the executor himself Jervis . Wolferstan, L. R. 18 Eq. 18, 25. The proviso at the end of sect. 29 of Lord St. Leonards' Act (22 & 23 Vict. c. 35), preserves the right of creditors to follow the assets of a testator, ante, p. *1208. If, in an action against executors, for a legacy, the executors admit assets, and judgment is given for payment of the legacy de bonis propriis: Quare, whether an unpaid creditor can call upon the legatee to refund the legacy. Semble, the creditor could recover the legacy in such a case if it was in fact paid out of the testator's assets, but not if it was paid by the executors de bonis propriis. Re Brogden, 38 C. D. 546. It would seem that the executor need not be made a defendant, at all events in cases where he has given the notices required by Lord St. Leonards' Act, 22 & 23 Vict. c. 35, and had at the time of distribution no notice of the plaintiff's claim. Hunter v. Young, 4 Ex. D. 256. (f) Hodges v. Waddington, 2 Ventr. 360. Thomas v. Griffith, 2 Giff. 504. This right may be lost by laches, acquiescence, or such a course of dealing as would render the assertion of such right inequitable; Ridgway v. Newstead, 2 Giff. 492. S. C. on Appeal, 30 L. J. Ch. 889. And so the right of mortgagees of real estate, whose security proves insufficient, to come against the residuary legatees of the mortgagor amongst whom his personal estate has been distributed, is a purely equitable right, and the court will not enforce it, if there are circumstances which would make it inequitable to do so. Blake v. Gale, 32 C. D. 571. Again, where the assets have been settled bona fide on the marriage of the residuary legatee, they cannot be followed: Dilkes v. Broadmead, 2 Giff. 113. So, it should seem, a purchaser of a legacy which has been paid or delivered, cannot be called on to refund or pay any part of a debt subsequently established against the testator's estate: Noble v. Brett, 24 Beav. 499. (g) March v. Russell, 3 M. & Cr. 31. [*1314] |