(98 Kan. 328)

LARNED. LARNED et al. (No. 20225.) (Supreme Court of Kansas. June 10, 1916.)

(Syllabus by the Court.)

DOWER

OPERATION OF

edge of all the essential facts and circumstances as well as of her legal rights.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 2051; Dec. Dig. 792(3).]

6. WILLS 792(1, 5)-ELECTION TO TAKE UNDER WILL.

Under the circumstances of the case, it cannot be held that the widow consented or elected to take less than an undivided half interest in the land in Kansas, because she accepted the income from the land situate in other states, nor because of the institution of this action for partition, nor yet by reason of a letter to her own attorney to the effect that her husband might have given her a smaller share if he had understood the Kansas law and that she would be satisfied to receive the share he intended for her to have.

[Ed. Note.-For other cases, see Wills, Cent. Dig. §§ 2049, 2061-2063; Dec. Dig. 792(1, 5).]

1. WILLS 790 STATUTE. In a will a testator domiciled in New Jersey disposed of real estate in Kansas as well as that situated in four other states. Under the statutes of three of the states the wife of a deceased husband is entitled to dower or a life interest in a third of his real estate. In another state she is entitled to a fee of a third of the land, while under the statutes of Kansas she takes an undivided half interest in the land, unless she consents in writing to take a smaller or different share. The testator disposed of a large estate, devising and bequeathing to his wife a tract of land in New Jersey, $5,000 in cash and 100 volumes of books, and he then added the provision: "I confirm to her, her right to dower in all the real estate of which I shall die seised." He also confirmed her right to the income from a trust fund previously created and, after making a number of small bequests, he gave the residue of his estate to his children. A law of New Jersey in effect provides that, if land be devised to a wife without expressing whether or not it is intended to be in lieu or bar of dower, she shall not be entitled to dower in the devised lands unless she shall, within six months after the probate of the will, express her dissent to receiving the lands devised. Held that this statutory provision did not apply to the will in question, since it provided that the wife should have dower or a widow's share in Action by Edna R. W. Larned against Wiladdition to the real estate devised to her. liam A. Larned and others. From judgment [Ed. Note. For other cases, see Wills, Cent. for plaintiff, defendants appeal. Affirmed. Dig. §§ 2043-2048; Dec. Dig. 790.]

3. WILLS 436 CONSTRUCTION WHAT LAW GOVERNS CONFIRMATION OF DOWER RIGHT.

The provision of the will confirming her right to dower in his real estate in the several states is fairly open to the interpretation that he intended to give her the share of the land situate in each state which the law of that state gives to the wife of a deceased husband.

(Additional Syllabus by Editorial Staff.)
7. DOWER 1-RIGHTS OF WIDOW.
In the absence of any apt, single word to
designate the interest which a widow takes in
the estate of her deceased husband, lawyers as
well as laymen often speak of that interest as
"dower."

Dig. §§ 1, 2, 8; Dec. Dig. 1.
[Ed. Note.-For other cases, see Dower, Cent.

For other definitions, see Words and Phrases,
First and Second Series, Dower.]

Appeal from District Court, Atchison County.

Waggener & Challiss, of Atchison, for appellants. Z. E. Jackson, of Atchison, for appellee.

JOHNSTON, C. J. This action was brought by Edna R. W. Larned to recover an undivided half of lands situated in Atchison County and her share of the rents and profits accruing since the death of her husband, William Z. Larned, who died on March 30, 1911, in the city of Summit, N. J., which was his place of residence. The plaintiff is also a resident of that place and has never resided in Kansas. The defendants William A. Larned, Edward P. Larned, and Elizabeth MacCarthy are the children of William Z. Larned by a former wife and, together with

[Ed. Note.-For other cases, see Wills, Cent. the plaintiff, are his only heirs at law. WilDig. 88 917-950; Dec. Dig. 436.]

liam Z. Larned left a will which he had ex-
ecuted in his own writing on January 11,
1911, and which was duly admitted to pro-
bate in Union county, N. J.; an authenticated
copy of the same being afterward recorded in
His three children,
Atchison county, Kan.
defendants herein, were named as executors
of the will. William Z. Larned had been a
practicing lawyer in the city of New York

[Ed. Note. For other cases, see Wills, Cent. and at the time of his death was possessed Dig. §§ 947-950; Dec. Dig. 436.]

5. WILLS 792(3)-ELECTION TO TAKE UNDER WILL-WHAT CONSTITUTES.

of personal property amounting to $200,000 more than enough to pay all debts, expenses, and specific legacies, and real estate of the The acts relied on as constituting an election of a widow to take under a will must be clear, aggregate value of $339,000, situated in New positive, and unequivocal, evincing an intention York, New Jersey, Montana, Minnesota, and to elect, and it must be done with full knowl-Kansas. The Kansas land was valued at

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

by the laws of Kansas. Under the Kansas statute, Larned could not, without his wife's consent, devise to other than his wife more than a half of his Kansas property, and an attempt to will to others more than a half would have been inoperative as to her. Gen. Stat. 1909, § 9811; Comstock v. Adams, 23 Kan. 513, 33 Am. Rep. 191; Ashelford v. Chapman, 81 Kan. 312, 105 Pac. 534; Williams v. Campbell, 85 Kan. 631, 118 Pac. 1074. The plaintiff is therefore entitled to a half of the property involved in this proceeding unless she has consented to take the less quantity or a share other than that given to her by the local law.

[1] It is contended that she should be deemed to have elected to take under the will because of her acceptance of benefits provided by the will, as well as by the bringing of this action. The testator and his wife re

$51,000. The provisions in the will for the | The descent, alienation, or transfer of real plaintiff were: (1) A devise of a plot of property in Kansas are exclusively governed land in the city of Summit, N. J., conceded to be worth about $5,000; (2) a bequest of $5,000 in cash; (3) 100 volumes from the decedent's library; (4) a clause reading, "I confirm to her, her right to dower in all the real estate of which I shall die seised"; and (5) a clause confirming her right to certain trust funds previously given, yielding an income of $1,500 per annum. The case was tried upon an agreed statement of facts, and, among others, the law of New Jersey with reference to the widow's dower right was set forth. It also contained a provision of the New Jersey law that, where a husband devises land to his wife without expressing whether or not the devise is in lieu or bar of dower, the widow shall not be entitled to dower in any lands devised by the husband unless she shall express in writing her dissent to receive the lands devised to her in satisfaction and bar of her right of dow-sided in New Jersey when the will was made er in other lands devised by the will, and that the dissent shall be filed within six months after the probate of the will, either in her own county or that in which the land is situated, and in that case she shall be considered as renouncing the benefit of the devise to her. It was conceded that the plaintiff had never relinquished by deed her right of dower in the New Jersey land and that she did not file any dissent to receive the lands devised to her. It was also conceded that the plaintiff had not accepted the legacy of $5,000, nor the bequest of the books, nor the specific devise of the New Jersey land. It appears that, shortly after her husband's death, the plaintiff in a letter to her own attorney stated in effect that she believed her husband supposed that the widow's share was the same in Kansas as in New Jersey, and that she was satisfied to take what he intended she should have, and, further, she thought the executors ought to give her the specific bequest and the third interest in the other real estate. She expressed her belief that, if her husband had known that she was to have a half of the Kansas land, he would not have left the legacy to her. The contents of this letter were brought to the attention of the defendants shortly after it was written. The court gave judgment for the plaintiff, deciding that she was entitled to an undivided half of the Kansas land, and in his conclusions of law stated that the plaintiff had not made any election to take under the law or under the will and that she was not required to make such an election.

The defendants appeal and contend that the plaintiff by her acts had accepted the terms of the will and thus cut off dower, or her interest in other lands devised, and that, if the testator intended that she should have any right in the Kansas land, it could be no more than a life interest in a third of it as

and when he died. The general rule is that in interpreting a will the courts will look to the law of the testator's domicile for the purpose of ascertaining his intention unless it appears that he had the law of another jurisdiction in mind, or unless the law of the domicile will contravene the local law. Keith v. Eaton, 58 Kan. 732, 51 Pac. 271; 40 Cyc. 1382. A provision of the New Jersey law, as we have seen, is that if land be de vised to a wife without expressing whether or not it is intended to be in lieu or bar of dower she shall not be entitled to dower in any of the devised lands unless within six months after the probate of the will she shall in writing express her dissent to receiving the lands devised. 2 Comp. Stat. N. J., 1911, p. 2048, § 16. The will in question does not come within that provision, since it cannot be said that real property was devised by the testator without expressing whether or not it was intended to be in lieu or bar of dower. The recitals of the will make it reasonably clear that the New Jersey land was not devised in lieu or bar of dower. After devising the plot of ground in New Jersey to his wife, the testator says: "I confirm to her, her right to dower in all the real estate of which I shall die seised." Manifestly it was his intention to give his wife the New Jersey land, which was only worth $5,000, in addition to dower or widow's share. Among the agreed facts, it is stated that the plaintiff has never accepted the specific devise of the New Jersey land, nor the legacy of $5,000 mentioned in the will, nor the bequest of 100 volumes of books, which it is agreed do not exceed the value of $250. Her inaction in this respect does not indicate consent or election, and she was not required to make an election under the law. In fact, there is nothing in the will inconsistent with the claim of the plaintiff that she is entitled to

[2, 3] Instead of the ordinary words of de- | domicile and the effect given to its provisions vise used in outright gifts, the testator recog- by the courts of that jurisdiction may be nized that plaintiff was entitled to the wife's examined to aid in finding the intention of share in the lands owned by him, and so he the testator; but, when it comes to the disconfirms her right instead of giving or trans- position of .real property, the law of the ferring one to her. He was a practical law-place where the property is situated must yer with investments in several of the states, and it is fair to assume that he knew that the devolution of land on the death of the owner was governed solely by the laws of the state where the land was situated. The laws of the several states in which his lands were situated differed materially, and this undoubtedly was well known to him. Instead, therefore, of undertaking to devise and be queath a particular share of the land lying in the states of Kansas, New York, New Jersey, Minnesota, and Montana, he proceeded on the theory that the laws of each state gave his wife a certain share which he denominated dower, and so he confirmed or ratified the rights which such laws gave. A definition of the word "confirm" is, to make firmer, to strengthen, sanction, or ratify. The confirmation of a title imports an existing title. In order to confirm an estate there must be a previous estate on which it is to operate. Biddle Boggs v. Merced Mining Co., 14 Cal. 279; Jackson v. Root, 18 Johns. (N. Y.) 60; 2 Words & Phrases, 1425.

In People v. Law, 34 Barb. (N. Y.) 494, 511, 22 How. Prac. 109, it was said that:

"Confirmation' is the approbation or consent to an estate already created, which, as far as it is in the confirming power, makes it good and valid."

See, also Fauntleroy's Heirs v. Dunn, 42 Ky. (3 B. Mon.) 594; Langdeau v. Hanes, 88 U. S. (21 Wall.) 521, 22 L. Ed. 606.

[4, 7] Evidently the testator intended to schedule all of his property in the will and to have it show that a complete disposition of the entire estate had been made. Under the law, whether he willed it or not, she had a right to a use for life in a third of the lands in New York, New Jersey, and Montana, to a third in fee of the land in Minnesota, and to a fee in a half of the land in Kansas. He included all his lands in the will giving that which he could legally give and ratifying and making firmer so far as he could that which the law gave to his wife. It is argued that dower is a technical term and is presumed to have been used by the testator in a technical sense. Further, it is insisted that the meaning given to the term in New Jersey, the domicile of the testator, is probably the one that was in his mind, and that therefore we may properly look to the law of that state to ascertain his intention. Keith v. Eaton, supra, is cited as authority to sustain this view; but, while that case sanctions a reference to the law of the domicile to ascertain the sense in which the words of a will are used, that interpretation cannot be applied when it will contravene the law of the state where the will is offered for record and probate. The law of the

control. To apply the New Jersey rule would contravene the law of Kansas, and under the rule of Keith v. Eaton that application cannot be made. In many cases the word "dower" is used in its popular, rather than its technical, sense. While the estate of dower was abolished many years ago, this term is still frequently used to designate the interest in the estate of the husband which the law gives to the wife. An apt, single word has not been coined to designate the interest which the widow takes in the estate of the deceased husband, and lawyers as well as laymen often speak of that interest as "dower." It is so used by courts of other states as well as our own. The Supreme Court of Iowa, in speaking of the interest of a widow, said:

abolishes the es

"While the statute tate of dower, and the interest in the lands of is designated by other terms used in the statute, the deceased husband given by law to the widow the profession continues to use the word 'dower' to designate such interest, doubtless finding it convenient in describing the estate of the wife in the lands of her deceased husband. No confusion or misunderstanding arises from the use of the word, the profession understanding its meaning in accord with the estate prescribed by the statute." Daugherty v. Daugherty et al., 69 Iowa, 677, 678, 29 N. W. 778.

See, also, Mock v. Watson, 41 Iowa, 241; Estate of John Barry, deceased, 13 Phila. (Pa.) 310; State of Missouri v. Evers et al., 49 Mo. 542; O'Brien v. Ash, 169 Mo. 283, 69 S. W. 8; Durbin et al. v. Redman et al., 140 Ind. 694, 40 N. E. 133.

[5, 6] As the plaintiff would have taken the same interest under the law as under the will, her acceptance of the income of the lands in the several states cannot be regarded as an election to take under the will rather than under the law. Neither can the bringing of the action to recover her share in the Kansas land be regarded as an election to take under the will. Although she stated at length the extent of the estate, the execution and contents of the will, and the laws of the respective states where the property was situate, she also alleged that, under the law as well as under the will, she was entitled to an undivided half of the Kansas land. Apart from the fact that the plaintiff's claim was not inconsistent with the will, it has been held that, if a devisee in his pleading claims both under and against the will, it does not amount to an election and a waiver of his right to make it. Bebout v. Quick, 81 Ohio St. 196, 90 N. E. 162. See, also, Cobb v. Macfarland, 87 Neb. 408, 127 N. W. 377; Lohmeyer v. Durbin, 213 Ill. 498, 72 N. E. 1118. Nor does the letter to her attorney expressing her opinion as to the in tention of her husband when he made the

will, or of the law and her right under it, | finding of negligence, they control, and it is constitute an election. The acts relied on as constituting an election must be clear, positive, and unequivocal, evincing an intention to elect, and it must be done with full information of all the essential facts and circumstances as well as of her legal rights. Sill v. Sill, 31 Kan. 248, 1 Pac. 556; James v. Dunstan, 38 Kan. 289, 16 Pac. 459, 5 Am.

Action by Clyde Maris, a minor, etc., St. Rep. 741; Reville v. Dubach, 60 Kan. 572, against the Lawrence Railway & Light Company. From a judgment for defendant, plaintiff appeals. Affirmed.

MARIS v. LAWRENCE RY, & LIGHT CO. less, and that these defects and conditions

[Ed. Note. For other cases, see Street Rail- his speed until he saw the street car when roads, Cent. Dig. § 219; Dec. Dig. 103(3). he was between 55 and 65 feet from the 3. TRIAL 359(1)-SPECIAL FINDINGS-EF-tracks. The maximum speed at which moWhere the special findings showing in detail torcycles are permitted to run by the ordijust what occurred contradict and overturn the nances of the city of Lawrence is 15 miles

chance." It was relied upon in the petition and is urged here, but the doctrine finds no room for application to the situation presented by the facts determined by the jury. The actually contributed to his injury. There plaintiff's own negligence extended up to and was no new breach of duty by the motorman subsequent to plaintiff's negligence. finding is that the motorman did not see plaintiff when he was thrown under the car, and that he first learned of the fact when the car was stopped; and, besides, there is the finding that he did everything in his power to stop the car as soon as he saw the plaintiff. That the doctrine of the last clear chance is not applicable to these facts, see Dyerson v. Railway Co., 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207; Railway Co. v. Bentley, 78 Kan. 221, 93 Pac. 150; Himmelwright v. Baker, 82 Kan. 569, 109 Pac. 178; Coleman v. Railway Co., 87 Kan. 190, 123 Pac. 756; Marple v. Railway Co., on rehearing, 85 Kan. 705, 118