Graves vs. Mitchell and others. and his wife, Rachel, to Stowe to secure that bond, and the bond from Stowe back to William Graves, mentioned in the foregoing statement, must be taken and considered together as one instrument, and, when so considered, they were-manifestly made with the intention of securing to Rachel in case she survived her husband, and to her children by a former husband in case William survived her, the sum of $6,000, to become due and payable upon the death of William or Rachel (whichever should first die), or within two years from the date of such first death, with interest from that date at seven per cent., and that such payment should be in full of any and all claim of the said Rachel, as the wife or widow of the said William, of dower or otherwise; and such payment was only to be made by such trustee upon condition that she accepted the same in full of all other demands of dower or otherwise against said estate, and executed a release of her interest therein accordingly. It may be, as contended, that a wife cannot, during coverture, by mere deed of release signed by herself alone, bar herself of her statutory rights in the property of her deceased husband. Wilber v. Wilber, 52 Wis. 298; Munger v. Perkins, 62 Wis. 504; Leach v. Leach, 65 Wis. 291; Le Saulnier v. Krueger, 85 Wis. 214; In re Rausch, 35 Minn. 291; Holmes v. Holmes, 54 Minn. 352. Nevertheless, the intention that those instruments should have such an effect is very manifest from their contents, and it is at least very doubtful whether she could have enforced payment under those instruments without at the same time complying with the conditions thereby imposed upon her. However that may be, since it appears that William Graves died November 28, 1893, leaving a last will and testament, in and by which he made provision for his widow, Rachel, as mentioned in the foregoing statement, it is manifest that she was thereby put to her election whether she would take the provisions so made for her in the will or claim under the statutes (sec. 2171, R. S.). Being entitled to such election, she must be deemed to have elected to take such provision so made for her in the Graves vs. Mitchell and others. will, since it does not appear that within one year after the death of her husband she filed in the probate court notice in writing that she elected to take under the statutes instead of the provisions made for her in the will. Sec. 2172, R. S.; Hardy v. Scales, 54 Wis. 452; Van Steenwyck v. Washburn, 59 Wis. 496. The question recurs whether the bequest made for the widow in the will is cumulative or substitutional. By the first clause of the will Mr. Graves provides that: "After the payment of my just debts and funeral expenses, I give, devise, and bequeath (in lieu of all other allowances) to my wife Rachel, the sum of six thousand dollars for her own use, and the use of all my household furniture, beds and bedding during her lifetime, afterward to be divided between Anna Lee and Henrietta Kane equally, share and share alike." The portion of this bequest thus giving to the widow the use for her life of the "household furniture, beds and bedding" is additional to anything secured or attempted to be secured to her by the two bonds and mortgage mentioned. No objection is made to the construction placed upon this portion of that clause by the trial court. But it is contended that the portion of the clause which bequeathed to Rachel $6,000 for her own use "in lieu of all other allowances was, nevertheless, also in addition to the $6,000 secured or attempted to be secured to her by the two bonds and mortgage. It will be observed that the amount thus secured in each instance is precisely the same. As secured by the bonds and mortgage, it became due and payable immediately upon the death of William, with the privilege of those representing his estate to postpone such payment for a period not exceeding two years, by paying interest thereon at seven per cent. from the time of his death. Such provision for paying interest pending such postponement emphasizes the fact that by the terms of the bonds and mortgage the $6,000 is treated as the property of Rachel from the Graves vs. Mitchell and others. time of the death of her husband. The will is silent as to the time when the $6,000 should become due and payable. True, the will did not become effectual until it was proved, February 7, 1894 (sec. 2294, R. S.), but the moment it was proved it took effect, by way of relation, as of the death of the testator, which was November 28, 1893. Bridge v. Ward, 35 Wis. 687; Scott v. West, 63 Wis. 552. In other words, the bequest of $6,000 in the will must be deemed to have become vested in Rachel, in point of legal right, immediately upon the death of the testator. Scott v. West, 63 Wis. 566, 571. Thus it appears that the $6,000 bequeathed by the will and the $6,000 secured or attempted to be secured by the bonds and mortgage were substantially the same in amount and became vested in the widow at the same moment of time; and, in addition, the will gave her the use of the furniture, beds, and bedding, during her life, as mentioned. acies All agree that the will must be construed in accordance with the intentions of the testator as expressed in or implied from the language therein employed. Undoubtedly, the general rule is as contended by counsel for the widow, that: "If a legacy of the same amount to the same person be repeated in two separate testamentary instruments, as a will and codicil, prima facie the legatee is entitled to both legBut if the repetition occurs in one and the same testamentary instrument, prima facie the legatee is entitled to one legacy only." Hawkins, Wills (Am. Notes), 303, and cases there cited. The same learned author, in the same connection, says: "But it may often be the case that of two legacies given by different instruments the latter, whether equal to the former or of greater amount, is a repetition of or substitution for the former." Id. 304. In support of this proposition he cites several English cases, as "where the amounts are equal, but some circumstances are altered;" and "again, where a series of legacies given by Graves vs. Mitchell and others. one testamentary instrument is repeated in another with slight variation or additions, the similarity of the two sets of gifts may show that the second instrument, as a whole, is intended as a substitution for, and not an addition to, the first." Ibid. In addition to the cases there cited in support of the proposition stated, see Fowler v. Fowler, 3 P. Wms. 353; Barclay v. Wainwright, 3 Ves. 462; Hinchcliffe v. Hinchcliffe, 3 Ves. 516; Osborne v. Duke of Leeds, 5 Ves. 369; Benyon v. Benyon, 17 Ves. 34; Kidd v. North, 14 Sim. 463; Whyte v. Whyte, L. R. 17 Eq. 50; Atkinson v. Littlewood, L. R. 18 Eq. 595; Rice v. Boston P. & S. A. Soc. 56 N. H. 191; 13 Am. & Eng. Ency. of Law, 54-58. In some of these cases the court seized upon very slight circumstances for the purpose of holding that the bequest last made was substitutional. We do not think there is anything in Wilson v. O'Leary, L. R. 12 Eq. 525, S. C. affirmed, 7 Ch. App. 448, relied upon by counsel, which militates against the views herein expressed. That case was peculiar in its facts, and appears to have been rightly decided. In the case at bar the language of the will and the circumstances presented pretty clearly indicate that the bequests to the widow in the will were by way of satisfaction of the provisions made for her in the bonds and mortgage. The amount and the motive in each case were substantially the same. A manifest purpose in the bonds and mortgage was to thereby forever bar Rachel, upon his death, from any right to any other portion of his estate by virtue of the statutes. Mr. Graves may have realized that there was some doubt whether they would have such an effect. The bequests to her in the will were, under the adjudications of this court cited, presumptively in lieu of any right or claim under the statutes. Such bequests are therein expressed to be "in lieu of all other allowances." Counsel contend that this refers to such allowances as might otherwise have been made to her by the court under the statutes. Gleason vs. Burroughs. But the bond from Mr. Graves to Stowe speaks of the $6,000 as "a suitable allowance out of his estate." The word "allowance" is manifestly used in the same sense in the will. We must hold that the bequests made to Rachel in the will were intended to be and are in satisfaction of the provision made for her in the bonds and mortgage. Had she elected to take under the statutes, a different question might have been presented. The costs and disbursements of all parties in this court are payable out of the estate. The county court will make such allowance to the respective parties out of the estate for counsel fees in this court as, in the exercise of a sound discretion, may be just. By the Court. The judgment of the circuit court is affirmed. GLEASON, Respondent, vs. BURROUGHS, imp., Appellant. April 24-May 15, 1895. Deeds: Construction: Right of way: Enlarging specific description. 1. A conveyance of a right of way "on foot and with teams over certain land of the grantor gave a right to the unobstructed use of a strip of reasonable width for the passage of teams; and, the conveyance having been at once recorded, such right could not be impaired by any subsequent conveyance of the fee. 2. A reservation by the grantor of a right of way across the northerly end of a tract conveyed by metes and bounds, for the purpose of repairing a mill race, and a condition in the deed that the grantee should build an embankment on and across the northerly end of the premises, along the southeasterly side of the mill race, ten feet in width, and keep it in repair, did not extend the terms of the grant so as to make it include a strip lying between the mill race and the land specifically conveyed. |