ON MOTION FOR REHEARING. [4] Appellants urge that we reexamine the decision in the case of In re Estate of Connor, 254 Mo. 65, 162 S.W. 252, supra and the statement of the principles therein set out and quoted in the opinion in the instant case which should guide a chancellor in choosing between benefits under a will and statutory rights for an insane beneficiary. It is asserted these principles were taken from Penhallow v. Kimball, 61 N.H. 596 which was later disapproved by *Page 877 the same court in Wentworth v. Waldron, 86 N.H. 559, 172 A. 247. After the decision in the Penhallow case New Hampshire enacted a statute giving the guardian of an insane person the power to make the choice for an insane beneficiary between taking under the will or under the statutes. Under this enactment the guardian in the latter case chose to renounce the will and take under the statutes. The court held that even though the provisions of the will were sufficient for the comfortable support and maintenance of the insane widow it was within the discretion of the guardian under the enactment to renounce the will which provided a life income for the widow and take the widow's statutory share outright. In reaching its decision the court pointed out the two Missouri decisions, In re Estate of Connor, supra, and Primeau v. Primeau, 317 Mo. 829, 297 S.W. 382 which follows the Connor case, were not pertinent because of the enactment. The court goes[16] on to say the principles enumerated in the Penhallow case for the guidance of a chancellor in making an election for an insane ward (repeated in the Connor case) have been severely criticized but that it was unnecessary for the purpose of that case to pass upon their correctness.
The Wentworth case approved the decision in Emmert v. Hill,226 Ill. App. 1, which laid down the general rule that in determining the best interests of a ward the choice must be made which will obtain the greatest money value for the ward. It was stated that this rule might not apply in every case if the difference in money value was not great. However, the Illinois Court went on to say that to follow the Connor case penalizes a widow for being insane. We disagree with the latter statement. What the Illinois Court must have meant was the principle announced in the Connor case affected those who would inherit from the widow. However, if the widow was sane what assurance would there be she would provide for such heirs? The welfare of the heirs of the insane beneficiary seems to be the impelling motive in those decisions which follow the rule laid down in the Emmert case and which are in a decided minority. They include Mead v. Phillips,135 F.2d 819; In re Stevens Estate, 163 Iowa 364, 144 N.W. 644, and In re Hills, 157 Misc. 109, 283 N.Y.S. 733.
The rule that the choice must be determined by the greatest money value was rejected in the leading case of Van Steenwyck v. Washburn, 59 Wis. 483, 17 N.W. 289. The court said to follow such rule would defeat the will and the testator's intentions were a proper consideration and entitled to some weight in making the election. It pointed out if the court was compelled to elect the more valuable interest without reference to any other consideration the court, although authorized to do so, would not really exercise any discretion whatever. That case has been followed by the majority of the decisions on the question. See: State ex rel. Percy v. Hunt, 88 Minn. 404; In re Hansen's Guardianship, 67 Utah, 256, 247 P. 481 (quoting with approval *Page 878 from the Connor case); Carey v. Brown, 194 Minn. 654,260 N.W. 320; First Nat. Bank of St. Petersburg v. MacDonald,100 Fla. 675, 130 So. 596 (citing the Connor case with approval); Hamilton Nat. Bank v. Haynes, 180 Tenn. 247, 174 S.W.2d 39 (citing the Connor case with approval); In re Brooke's Estate, 279 Pa. 341, 123 A. 796; In re Stockton, 311 Pa. 189, 166 A. 648; Sippel v. Wolff, 333 Ill. 284, 164 N.E. 678, a decision of the Illinois Supreme Court which fails to mention or follow the Emmert case, supra. See also the annotation in 74 A.L.R. 452, which cites at 458 the case of Re Sefton [1898] 2 Ch. 378 described as a leading English case on the subject in which the judge says: "Upon the question whether it would be for the benefit of the lunatic to comply with the conditions contained in his father's will, I have no hesitation in stating my conclusion, which is that it would be for his benefit. I think we ought not in these cases simply to take the narrow view of what is the pecuniary benefit. We should act for the lunatic as if he were a person of sound mind; and being a person of sound mind, he would be actuated, as a reasonable man, with a desire to comply with such a condition as this contained in his father's will."
It is apparent the Connor case is in line with the majority view and is regarded as sound. We were correct in reaffirming and following it in this case.
Appellants point out that the widow is now 72 years of age. She has an independent estate, owns the home in which she resides, receives a monthly income from her own estate ample to meet all of her expenses so that she is not dependent on the provision in the will for her support now or for the short expectancy of her future life. Therefore, they argue, she should be permitted to take her statutory lump sum allowance which they estimate at approximately $50,000. Even so, the chancellor in his discretion was justified in retaining for her the security that she would be cared for so long as she lived as provided by the will. Upholding the will was a proper consideration.
The motion for rehearing is overruled. All concur.