Utter v. Laymance

SMITH, C. This is an appeal from a decree of partial distribution in favor of the respondent, M. J. Laymance. The appellants Denton Utter and Edith Hall are the grandchildren and sole heirs of the deceased, and also, under the will, devisees respectively of certain lands therein described; and the former is also executor. The respondent is, by mesne assignment, the successor in interest of Mrs. Mary E. Flick, to whom certain lands were devised in the will, subject to an existing indebtedness of fifteen hundred dollars, secured by deed of trust, “the said bequest being given [it is recited] because of the affection and care she has borne towards me, and also in full satisfaction of any and all claims she may have against me for moneys loaned and services performed.” The lands devised to Mrs. Flick were sold under the trust deed for the sum of $2,730, leaving in the hands of the trustees after payment of the debt the sum of $1,234.48, which sum was paid to the executor, and is the sum decreed to be distributed to the respondent as assignee of Mrs. Flick. It is claimed by the appellants: 1. That the respondent’s assignor made election between her devise and the indebtedness due her from the deceased, and that respondent is therefore es-topped to claim under the will; or 2. If this be otherwise, that the devise to Mrs. Flick is subject to contribution, along with the other devises, for the payment of the debts and charges of administration.

As to the former proposition, the finding of the court is adverse to the appellants, and, we think, is fully supported [455]by the evidence. The evidence of election consisted in the presentation of a claim on the part of Mrs. Flick for the sum of two hundred and ten dollars, which was approved for the sum of one hundred and twenty dollars. Assuming Mrs. Flick’s disposition to elect, this was a repudiation of her proposition, and she was at liberty to withdraw the same, which she afterwards did. It is true that before this withdrawal she expressed herself to the executor as satisfied, and that the claim was presented by her attorney to the judge for approval and was approved. But this, it appears from the evidence of the attorney and her own, was done under misapprehension of the facts of the case, and was followed almost immediately by the withdrawal of the claim, and then by a written declaration of election to take under the will. It also appears that prior to the presentation of the claim, and conversations between the appellant executor and Mrs. Flick, the land in question had been appraised at thirty-five hundred dollars, and that Mrs. Flick was not made acquainted with this fact by him; and indeed that throughout the affair, until after the approval of the claim, she and her attorney were entirely ignorant of the value of the property. The finding of the court on this point, therefore, cannot be disturbed.