In re Estate of Smith

Will—Construction—Disposition of Community Property—Election of Widow.—Of two permissible constructions of a will that which favors the conclusion that the testator is disposing only of his own half of the community property will be adopted; but where the testator undertakes in terms to dispose of all the property of the community, and declares that the will is made with full knowledge of the property rights of the husband and wife, and with her consent, though such declaration does not bind the wife, it is sufficient to put her to an election whether or not to take under the will.

Id.—Time of Election—Distribution of Estate—Previous Election— Estoppel.—The widow may elect to take her half of the community property upon distribution of the estate, unless by former acts in dealing with the property she is estopped from making it, by a previous election to take under the will, and such previous election is to be tested by the rules of estoppel.

Id.—Findings—Election to Take Under Will—Conclusion of Law.— Where the court finds the acts of the widow, from which it concludes that she had elected to take under tha will, the result reached is properly placed among the conclusions of law, and if regarded as a finding, it being declared by the court to be drawn from the facts previously stated, if those facts do not support the conclusion it must fall.

Id.—Facts Creating Estoppel to Elect upon Distribution.—Before the widow can be denied her right to elect upon distribution to take her half of the community property it must be found that, with the knowledge of her rights, by unequivocal acts evincing her intent, she has so dealt with the property left her by the will, that it would be inequitable to permit her to avoid those acts and disclaim her intent.

Id.—Acts not Establishing Estoppel—Conveyance oe Life Estate— Declaration—Knowledge of Facts.—The conveyance by the widow of “all her interest in the property mentioned in the will as vesting a life estate therein upon the widow, ” to the sons of her deceased daughter, and a declaration to one of her grandsons that she wished the will to stand, are not sufficient to establish an implied election, or election by estoppel, to take under the will, it not appearing clearly that she recognized by her deed the life estate in the land devised to her, or that she had full knowledge of the facts concerning the properties and of her right to elect at the time she made the statement to her grandson. Estates of Deceased Persons—Presentation of Claims—Death of Coexeoütor—Debt to Estate—Distribution—Offset.—Where one of two executors of the estate of a deceased person dies, having in his hands a portion of the funds of the estate, which could not he identified as a trust fund, it is necessary that a claim should be presented against his estate by the remaining executor of the estate of the original decedent; and, if the time has expired for presenting claims against the estate of the deceased executor, the amount due from him to the estate of the original decedent cannot he deducted from his distributive share of that estate.