concurring.
I concur in affirming the judgment of the lower court for the reasons hereafter stated. O’Shea was claiming property that descended absolutely to him upon the death of his wife, notwithstanding her will. Ann. St. 1907, sec. 4903. Section 5065, Ann. St. 1907, directs executors as well as administrators to make a separate and distinct inventory and appraisement of the household furniture and other personal property, which may be allowed the widow, pursuant to the provisions of the chapter on decedents, and provides that such chattels shall not be considered assets in the hands of those officers of the court. Preceding 1901 the surviving wife, and not the husband, was given the wearing apparel, ornaments, household furniture, etc., of the deceased spouse. In 1901 the surviving husband and wife were placed on an equality with respect to said property (laws 1901, ch. 27), and the legislature in 1907 (laws 1907, ch. 49) continued that policy. Section 5065, Ann. St. 1907, is identical with section 200, ch. 14, Eev. St. 1866, and has never been amended. The fact that the legislature has not amended the last cited statute so as to specifically mentioii the surviving husband as well as the wife does not make it inapplicable to the husband’s case. O’Shea, therefore, did not depend upon the will for title to the property in dispute. In re Estate of Fletcher, 83 Neb. 156. The cited case was decided with reference to the statute in force prior to the amendment of 1907, supra, but it is somewhat in point.
Counsel for appellants argue with commendable learning the doctrine of election, but that principle does’ not *162apply to the record in this case. O’Shea filed his separate inventory enumerating the articles and the $200 claimed by him under section 4903, supra. Appellants objected to the surviving spouse receiving that property because it had been bequeathed to other legatees by his deceased wife, and claimed that, as O’Shea had accepted the land devised to him by that instrument, he had elected to take thereunder, and must renounce all claim to the chattels. O’Shea stands in the same light as though he had owned the disputed chattels at the time of his wife’s, death. In that event, as in the instant case, by asserting title to the chattels under the Luav, he Avould be claiming against, not under, the will. In cases like the one at bar the doctrine of election is actually that of compensation. 1 Pomeroy, Equity Jurisprudence (3d ed.), secs. 467, 468, 469; 2 Story, Equity Jurisprudence (13th ed.), secs. 1085, 1086; Rogers v. Jones, 3 Ch. Div. (Eng.) 688; Bigland v. Huddleston, in note to Freke v. Barrington, 3 Brown Ch. (Eng.) *274, *286; Carper v. Crowl, 149 Ill. 465; Williams v. Williams, 5 Gray (Mass.) 24.
Judge Story, in 2 Equity Jurisprudence (13th ed.), sec. 1079, and note, p. 426, refers to the principles of the civil law which do not permit the beneficiary in a Avill to receive any advantage therefrom if he takes against it. Mr. Swanston in his note to Gretton v. Haward, 1 Swan. Ch. (Eng.) 409, 444, comments upon the difficulties that may arise in cases of election where a bequeathed chattel may possess a value peculiar to the individual because of associations, but concludes that, unless the difficulty is unsurmountable, the doctrine of compensation Avill apply.
To the AArriter it seems that O’Shea, in asserting his legal rights to the enumerated property and the $200, has irrevocably elected to take against the Avill, and to hold the land devised to him, in trust, as far as may be necessary to compensate the other legatees for their disappointment in not receiving said chattels and money. It goes without saying that a county court is Avithout jurisdiction to declare and make that trust effective with relation to real *163estate. There is nothing upon which the decree of the county court can operate to satisfy the appellants, unless it has the power to divert the husband’s title to the chattels and vest it in the complaining legatees. I agree with the Chief Justice that the policy of this state, as evidenced by the will of the legislature, forbids that assumption of authority.
The decree of the district court reversing that of the county court and directing the delivery to O’Shea of the disputed chattels should be affirmed, but without prejudice to any proper action by appellants for compensation.
Letton, J., concurs in these views.