Carter v. Harvey

¶1delivered the opinion of the court.

¶21. Looking at all the evidence in the record, documentary and other, we have no hesitation whatever in affirming the finding of the learned court below as to the genuineness of the paper purporting to be the will of Mrs. Harvey. That the paper was wholly written and signed by testatrix is overwhelmingly establishing by'all the evidence.

¶32. The will of Mrs. Harvey did not fail to make any provision for her husband. The error of the counsel for appellant arises out of his reading into § 4497 of our code the words any “adequate” or “sufficient” provision for the husband. The plain and unambiguous language is: “If the will of the husband or wife shall not make any provision for the other, the survivor of them shall have the right to share in the estate of the deceased husband or wife, as in the case of the unsatisfactory provision in the will of the husband or wife for the other of them.” In the case before us there was no failure to make any provision by the will of the wife for the husband. Tie was made executor of the will and guardian of the infant children (then of very tender age), without bond, with the right to use the estate, as he always had done, for the benefit of the infants. He thus had some provision made for him. Besides, the whole estate was bequeathed and devised to him absolutely in the event of the children of the testatrix dying before reaching their majority. These provisions of the will were satisfactory to the husband, for he has never renounced the will, and it is not for his creditors to renounce for him.

¶4The decree is the only one which could properly have been rendered.

¶5Affirmed.