Ward v. Cook , 152 Okla. 234 ( 1931 )

I concur in the conclusion reached that the surviving wife would take one-third of the husband's estate, notwithstanding the will. I do not agree that the wife would not take succession under the laws of descent and distribution, section 11301, C. O. S. 1921. If the surviving wife did not take under section 11301, then she would take no part of the estate.

Section 11302, C. O. S. 1921, abolished dower and courtesy, and unless the wife takes under section 11301 she could take no part of her husband's estate. The laws of succession apply only to that part of the estate not disposed of by marriage contract or by will.

The right to make a will is granted to every person over 18 years of age of sound mind, section 11221, C. O. S. 1921.

Section 11224, C. O. S. 1921? is a limitation on this right and is not a law of descent and distribution and should not be so construed. Section 11224, C. O. S. 1921, is as follows:

"Every estate and interest in real or personal property to which heirs, husband, widow, or next of kin might succeed, may be disposed of by will: Provided, that no marriage contract in writing has been entered into between the parties; no man while married shall bequeath more than two-thirds of his property away from his wife, nor shall any woman while married bequeath more than two-thirds of her property away from her husband. * * *"

This section was in force at the time the descent in this case was cast. It does not grant the husband or wife any part of the estate of the other.

This section of the statutes deals only with that part of the estate to which husband or widow might succeed, and the limitation only applies to that part of the estate to which the widow might succeed; it in no way changes the law of descent and distribution, but is only a limitation on the husband, prohibiting him from willing away from his wife more than two-thirds of his property.

If there is no will, the wife would take under the laws of descent and distribution; if there is a will she would take under the laws of descent and distribution that part of the estate that the husband did not or could not will away from her.

Under section 11224 there was one-third of his estate that he could not will away from her. Her right to the estate is granted by section 11301, supra, and that right being subject to his right to make a will, section 11224 is a limitation on his right to dispose of his property by will.