DISSENTING OPINION I am unable to agree with the conclusion reached in the majority opinion. I base my conclusion upon the following reasons:
In the first place it seems perfectly clear from the will itself that the testator made all the provisions in his will for the widow that he intended her to have. In other words it was not intended by the testator that the widow should have the benefit of the provisions made for her under the will and also be allowed an additional amount as a statutory allowance. This seems to have been the conclusion reached by the trial court, and also by the majority opinion as I understand it. The court in the order entered in the probate court of California evidently was of the same conviction when *Page 297 he entered the order on November 19, 1931, for in the order itself he allowed the widow the sum of $5,000 per year, payable monthly from the funds of said estate, and specifically provided that the provisions made by said order should be in lieu of the provisions in subdivision 3, paragraph 7, in the second codicil of the will.
The trial court and the majority opinion of this court in effect conceded that the widow was not entitled to the benefit of the court order and also the provisions made in the will. If she were not entitled to both, then it necessarily follows that she was entitled to one only. Which one was she entitled to? Surely she could not switch from one to the other as and when she might so decide. If she could decide to accept the provision of the court order for a month or so, and then decide, that it would be to her interest to take under the provisions of the will, and ignore the court order and take under the will, by what reasoning could it be said that she could not again drop the provisions of the will and insist upon the court order being enforced? To ask the question is to answer it. The court order remained unrevoked and unmodified during the remainder of the lifetime of the widow. There was no legal reason advanced or attempted to be advanced by appellees as to why the provisions of the court order could not have been enforced at any time before the widow's death, by her or by her personal representative after her death. The order at all times was in full force and effect and binding upon the executor. It might be said that the only practical reason why the court order was not fully carried out by the executrix was because there was insufficient funds in the hands of the executor to pay the court order. It was quite true that the real estate situated in the State of Indiana could not be sold *Page 298 to make assets to pay the court order. She had to look to the property situated within that state to satisfy the order.
It seems to me that it is a reasonable deduction to make from the facts herein presented, that when the executrix discovered that the property situated within the State of California was insufficient to pay the court order and that the real estate in Indiana was not availing for that purpose, she then decided to claim under the provisions of the will and seek to enforce the provisions of subdivision 3, paragraph 7, of the second codicil of the will. It is my judgment the law does not permit her to do this. The court order was entered at her request. It remained unrevoked during the remainder of her lifetime. She accepted benefits thereunder, and the order provided that the order herein made should be in lieu of the provisions made in the will. When she secured this order and accepted benefits thereunder, she thereby surrendered her right to the benefits set out in this item of the will. Appellees nowhere in their brief, nor does the majority opinion, point out any legal reason why the amount unpaid according to the terms of the court order could not be enforced and recovered should it develop that there were sufficient assets within the State of California to pay the same. In which event the widow would receive the benefit of both the court order and the provisions of the will.
I am unable to agree with the majority opinion on another ground. This second reason for disagreement is based upon the proposition that where a testator makes a specific devise of realty followed by pecuniary bequests which are made a charge on all real and personal estate, or even on "all his real and personal property" which is succeeded by a residuary clause, the *Page 299 real estate specifically devised is not charged with the payment of the bequest. My position on this phase of the case is, I think, clearly set out and discussed in the following cases:Spong v. Spong, 1 Y. and J. 300; Conron v. Conron, 7 H.L.C. 168; Phillips v. Clark (1894), 29 A. (R.I.) 688, and cases therein cited.
The mere fact that the estate here in question passed into the hands of a trustee instead of an executor or an administrator is of no deciding influence. That fact is only the machinery selected by the testator by which the provisions of the will should be carried out.
In my judgment the judgment of the trial court should be reversed.
NOTE. — Reported in 32 N.E.2d 698.