Estate of Mumford

The widow of testator asked for distribution to herself of one-half of the community property, of the legacies to her under the will, and of her share of the legacies to certain children who have deceased.

In opposition, it is urged that the will compelled her to elect which she would take, either her share of the community property or the legacies named for her in the will, and that she cannot have both.

The language of the will is: “The foregoing bequests to my wife are made upon the condition that she shall renounce all claim against my estate except under this will.’’ The widow has filed a renunciation in the language of the will.

The reasonable construction of the will is, that the widow was not put to a waiver of, nor did she waive, her rights as survivor of the community. “All claim against my estate.” These words do not embrace her share of the community property; they embrace that which he owned and could dispose of.

In order to put a legatee to an election, the obligation to elect must follow from direct requirement or from necessary implication. There should be an antagonism in the two rights. If the will had said, “ she shall renounce all claim to the property of…