Owens v. Andrews
New Mexico Supreme Court
Appeal from District Court, Chaves County. Necessity of election. Common law rule. An express provision in the will in lieu of dower puts the widow to her election. Matter of Gordon, 172 N. Y. 25; note under 92 Am. St. Eep. 605. .Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. 40 Cyc. 1957; 20 Dec.
Read the full summary
Appeal from District Court, Chaves County. Necessity of election. Common law rule. An express provision in the will in lieu of dower puts the widow to her election. Matter of Gordon, 172 N. Y. 25; note under 92 Am. St. Eep. 605. .Election is the obligation imposed upon a party to choose between two inconsistent or alternative rights or claims, in cases where there is a clear intention of the person from whom he derives one that he should not enjoy both. 40 Cyc. 1957; 20 Dec. Dig. “Wills,” sec. 778; Storey Eq.-Jur. sec. 1075; Graham v. Rosenburgh, 47 Mo. 111. A testator having an undivided…
1Opinion of the Court
OPINION OP THE COURT.
HANNA, J.
All the property affected by this ease is admitted to be community property, in which the widow had a one-lialf interest, and in which, by the terms of the will, she was given a one-tenth interest. It being insisted by appellants that by the terms of (sec. 3) the will, the widow was put to an election as to whether she would take, under the statute, her community interest, or the provisions made for her in the will. Appellants admit that no express election was made, but that one must be implied by her conduct.
The section of the will referred to is as follows,…
2Cases cited2 opinions
- Goodrum v. GoodrumSupreme Court of Arkansas · 1892
- Gerard v. BeecherSupreme Court of Connecticut · 1908
3Cited by21 opinions
- Estate of Dahlke ex rel. Jubie v. DahlkeWyoming Supreme Court · 2014
- Gorman v. GauseTexas Commission of Appeals · 1933
- Appeal of Sims' EstateSupreme Court of Oklahoma · 1933
- Battle v. ClaiborneTennessee Supreme Court · 1915
- Merchants' Nat. Bank of Mobile v. HubbardSupreme Court of Alabama · 1931
16 more not listed; retrieve them via the Exa API.