in his will that his 'putative wife' should receive only $ 5.00.
While this argument is very persuasive on moral grounds, the executor and decedent have been unable to cite any applicable cases supporting their contentions with the exception of In Re Fulton, (1936) 15 Cal.App.2d 202, 59 P.2d 508 and Walker v. Matthews (1941) 191 Miss. 489, 3 So.2d 820; 139 A.L.R. 486. The former case relies on a statute dissimilar to the District of Columbia Code; the latter depends on a greatly altered fact situation.
This argument, i.e., the intent of the testator versus the statute, has been raised in numerous will cases in the past and has been consistently rejected by our courts. While the argument in the present case is perhaps stronger than many rejected in the past, it is based on the same rationale.
The District of Columbia Code, title 18, Section 211 sets forth the provisions for renunciation of devises and bequests to a spouse. Mrs. Hanson has filed such a renunciation in this case. The Code sets forth no exceptions to a widow's right to elect to take against the will except in cases where a wife by her adulterous conduct is barred from claiming dower rights (Title 18, Section 203). The Code contains no other exceptions to this rule, and the courts have introduced none.
The Court is no unmindful of the fact that the annotation, 'Misconduct -- Rights in Spouse's Estate,' 71 A.L.R. 277 at 285, states, In regard to the distributive share of the estate that the majority rule is that 'desertion or abandonment is generally held to be a bar to any right to share in the estate of the deceased spouse.' After a careful review of the cases cited therein, however, the Court has concluded that the large majority of these cases rest on statutes dissimilar to those applicable in the District of Columbia. Additionally, in many of these cases the surviving spouse had remarried and was attempting to take under the will of a prior husband. A later annotation on the same subject, 139 A.L.R. at 489, reaches the same conclusions as those reached by the Court in that it states that in the majority of jurisdictions applicable statutes control.
After careful research, it seems that the case most directly in point is the Delaware case of Pike v. Satterthwaite (1940) 1 Terry 595, 40 Del. 595, 15 A.2d 430, which involved a statute very similar to the District of Columbia statute. In that decision, the Court said that as the statute provided for a cash allowance and as the statute was 'positive and unequivocal,' the courts were obliged to give the statute the meaning conveyed by its language. No exception could be created, it said, where none exists in the law. It becomes apparent, therefore, that the widow, regardless of her conduct as alleged in the present case, may lawfully elect to take against the will.
The motion for summary judgment is granted.
Counsel should submit appropriate order.