#### Chapman, Appellant, vs. Chapman and others, Respondents.

*April 19*

May *8, 1906.*

*Wills: Election by mdow: Bight to share in residue.*

Under secs. 2171, 2172, and suhd. 6, sec. 3935, Stats. 1898, unless a widow renounces the provision made for her in her husband’s will she is not entitled to share in any residue of his estate not disposed of by the will. *Hardy v. Scales,*54 Wis. 452, followed.

Appeal from a judgment of tbe circuit court *for*Jefferson county: B. E. DuNwiddie, Circuit,Judge.

*Affirmed.*

Tbis is an appeal from part of a judgment of tbe circuit court for Jefferson county affirming a judgment of tbe county court, by wbicb a residue of personal property left undis-posed of by tbe will of one Samuel Chapman was distributed to tbé respondents, sons and grandsons of deceased. Tbe facts in tbe case are undisputed and are as follows: Samuel Chapman died testate April 14, 1904, leaving him surviving bis widow, tbe appellant, two sons, and two minor sons of a deceased son, respondents. His will was duly admitted to probate and made provision for tbe widow and contained certain bequests unnecessary to state here. After payment of tbe legacies and costs of administration a residue of personal property remained which was undisposed of by tbe will. Tbe widow made no election and failed to renounce tbe provision *414made for her in the will. Upon final settlement of the estate it was adjudged by the county court that, haying failed to renounce the provision made for her in the will, she was not entitled to any share of the personal property undisposed of. On appeal the circuit court affirmed this judgment. The claim of appellant is that the widow should have shared equally with the children of her deceased husband in the residue undisposed of by the will, and this is the only question involved upon this appeal.

*Frank H. Rogers,*for the appellant.

For the respondents *Marvin 0. Chapman*and *Theo. J. Chapman*there was a brief by *Tullar & Lockney*and *Charles F. Williams,*and oral argument by *D. 8. Tullar*and *Henry Lockney.*

*A. M. Webb,*guardian *ad lilem,*for the respondents *Waller Marcena Chapmcm*and *Ma/rk Edwin Chapman.*

KbRWIH", J.

The question raised upon this appeal is one of law, namely, whether the widow is entitled to a portion of the pei’sonal property undisposed of, she having failed to renounce the provision made for her in the will. We think the case is ruled by the decision in *Hardy v. Scales,*54 Wis. 452, 11 N. W. 590. It is claimed by appellant that statutory enactment subsequent to 1811 has changed this rule. The will in *Hardy v. Scales*took effect in 1817, although the case was not decided in this court until 1882, and after the revision of 1878, which contains the same provisions so far as material respecting the widow’s election and distribution of personal property as the statutes which control the case here. We do not deem it necessary to consider statutes prior to 1877 upon the subject. Under the provisions of ch. 106, Laws of 1877, the widow was put to her election not only between the provisions in the will and her dower interest, but also as to her homestead rights and share in her husband’s personal estate, and this statute has since remained substan*415tially the same. It appears in the revision of 1878, and is now secs. 2171, 2172, Stats. 1898, and provides, in effect, that when provision is made for a woman in the will of her husband she shall make her election whether she will take under the will or under the law¿ but she shall not be entitled to both, unless it plainly appears by the will to have been so intended by the testator, and when she is entitled to an election she shall be deemed to have elected to take under the will, unless within one year after the death of her husband she file in the court having jurisdiction of the settlement of his_ estate notice in writing that she elects to take the provision- made for her by law instead of the provision made by will, and upon filing such notice she shall be entitled to the same dower in his lands and the same rights to the homestead and the same share of his personal estate as if he had died intestate; and further provides that, when he dies testate, the share of his personal estate which she may take shall not exceed one third of his net personal estate, and that the provision of this and the two preceding sections shall not apply to any case where the husband shall die intestate leaving no issue. Sec. 1, ch. 99, R. S. 1858, respecting distribution, in force at the time the will in *Hardy v. Scales*took effect, after providing that the widow shall be allowed certain articles and also making an allowance out of the personal estate for the widow and children pending the settlement of the estate, further provided, subd. 6:

> “The residue, if any, of the personal estate, shall be distributed in the same proportions, and to the same persons, and for the same purposes, as prescribed for the descent and disposition of the real estate; except that the widow, if any, shall be entitled to receive the same share of such residue as a child of such intestate would be entitled to.”

Under the revision of 1878 [sec. 3935], subd. 6 was amended so as to read as follows:

> “The residue, if any, of the personal estate of any intestate, *416and the residue of tbe. personal estate of a testator, not disposed of by bis will and not required for tbe purposes here-inbefore mentioned in this section, shall be distributed in tbe same proportions, and to tbe same persons, and for tbe same purposes, as prescribed for tbe descent and disposition of real estate in cb. 102, except that when tbe deceased shall leave a widow and lawful issue, tbe widow shall be entitled to receive tbe same share of such residue as a child of such deceased.”

This amendment, it is claimed, so changed tbe statute as to take tbe present case out of tbe rule of *Hardy v. Scales.*Subd. 6, first above quoted, provides that tbe “residue,” if any, of tbe personal estate shall be distributed, while tbe statutes of 1878 provide that tbe “residue,” if any, of tbe personal estate of any intestate, and tbe residue of tbe personal estate of a testator not disposed of by bis will, and not required for tbe purposes thereinbefore mentioned in this section, shall be distributed. It will be seen that tbe term “residue” in subd. 6 of tbe statute of 1858 was held in *Hardy v. Scales*broad enough to include all residue remaining undis-posed of by will, and it has not been narrowed by tbe amendment. It will be seen that tbe amendment was intended to cover property not disposed of by will, and not required for tbe purposes mentioned in preceding subdivisions of tbe statute, tbe object manifestly being to make tbe statute more clear and explicit. So tbe amendment in tbe statute of 1878 does not materially change tbe law of 1858 respecting tbe distribution of tbe residue. It more specifically provides that tbe residue of tbe personal estate of an intestate, and tbe residue of tbe estate of a testator, not disposed of by will, and not required for other purposes specified in tbe chapter, shall be distributed as prescribed for tbe descent of real estate. Tbe same provision was substantially continued in tbe Statutes of 1898.

So far as tbe question involved here is concerned, tbe change in tbe statute does not seem to materially affect it. In *Baker*
      *417
      *v. Baker,*57 Wis. 382, 15 N. W. 425, tbe statute of 18?8 appears in tbe opinion to be treated, substantially of tbe same effect as tbe statute of 1858, and, while.tbe party’s rights be'came vested in that case under tbe íaw as it stood in 1858, tbe court appears to have recognized tbe statute of 18?8 as being in effect tbe same as tbe statute of 1858. It would also appear from this decision that tbe amendment of subd. 6, referred to, in tbe revision of 1878, was made for tbe purpose of meeting tbe objection that no allowance could be made to a widow in any case when tbe deceased died testate and by bis will bad disposed of all bis property, both real and" personal, ’ unless tbe widow renounced all rights under tbe will. Tbe revisers’ notes convey this idea. It seems tbe object of tbe amendment was to make subd. 6 of sec. 3935, R. S. 1878, clear that distribution should be made after payment of tbe allowance provided for in tbe preceding, subdivisions, leaving tbe provision for distribution under subd. 6 to apply to the; estate remaining after such allowance. *Baker v. Baker, supra;*Revisers’ Bill of 1897, p. 1051. It will also be noted that *Hardy v. Scales*was decided in 1882, after tbe revision of 1878, and no reference is made therein to any material difference between tbe distribution statutes of 1858 and 1878 upon tbe question here, although tbe question discussed in *Baker v. Baker*respecting tbe widow’s allowance is referred to. Tbe *Hardy Case*involved tbe exact question, here, since which decision there has been no change in tbe statutes, and we find nowhere in tbe language of tbe statutes themselves,, in tbe notes of tbe revisers, or in tbe decisions of this court any intimation of legislative or judicial intent to depart from that rule. Tbe *Hardy Case*has been approved and reaffirmed by this court and judicially recognized as tbe established law of this state upon tbe question involved. *Van Steenwyck v. Washburn,*59 Wis. 483, 17 N. W. 289; *Graves v. Mitchell,*90 Wis. 306, 63 N. W. 271; *Melms v. Pabst B. Co.*93 Wis. 140, 66 N. W. 244; *Willey v. Lewis,*113 Wis. 618, 88 N. W.*4181021. Under such, circumstances and in view of the history of this statute, as well as judicial recognition and approval of the rule laid down in *Hardy v. Scales,*we cannot recognize mere change in phraseology not clearly indicative of intent to change the meaning of the former statute as persuasive. We cannot read out of the change referred to in the revision of 1878 any legislative intent to change the rule laid down in *Ha-rdy v. Scales.*Under the doctrine established in that case and the statutes of this state as they have •since existed, the election statute, secs. 2171, 2172, nmst be ■strictly if not literally followed respecting the provision made ■for the widow, and where she fails to renounce the provision 'made by the will she is barred from taking any other portion ■of her husband’s estate, although such estate may not be fully ‘disposed of by will. The revision of 1878, so far as this question is concerned, appears to be in perfect harmony with the decision of the *Hardy Case,*and is so recognized by the revisers in their notes, as well as by this court in subsequent decisions. In *In re Donges’s Estate,*103 Wis. 497, 510, 79 N. W. 786, the court says •:

> “The same word used in sec. 2171, R. S. 1878, which puts ■a widow to her election in case any provision is made for her, has been construed more than once, . . . the general result of which is to give the word an exact literal meaning, and to hold that the giving to the widow anything in form is a ‘provision’ within that statute, whether it be hers in possession, or whether it be valuable.”

And in *Melms v. Pabst B. Co., supra,*the court says:

> “It is argued that in some way Mrs. Melms’s election to take under the law and not under the will did not affect the devise of the homestead, but that she retained title to the homestead under the will, while taking dower and personal property under the law,- thus taking partly under the will and partly under the law. Secs. 2171, 2172, R. S. 1878, seem very clear on this subject. Sec. 2171 provides that when lands are devised to a woman, or other provision made for *419ber in the will of her Husband, sbe shall elect whether she will take under the will or under the law (not whether she will take partly under the will and partly under the law), but that she shall not have both unless such plainly appears by the will to have been the intent of the testator.”

We feel constrained to hold that the case at bar is ruled by *Hardy v. Scales,*and therefore the judgment must be affirmed.

*By the Court.*— The judgment of the court below is affirmed.