Bell v. Mason's Adm'r , 10 Ala. 334 ( 1846 )

COLLIER, C. J.

The cases cited by the counsel for the defendants in error very satisfactorily show, that the meaning and effect of the will become fixed by the testator’s death, and do not change with subsequent events. This is the necessary sequence of the principle which declares that a will becomes consummate and irrevocable by death. True, the right of a beneficiary may be enlarged by subsequent occurrences, but this does not result from the will operatingprúprio vigore, but is the consequence of something extrinsic, considered alone, or in connection with the testator’s declaration. Thus, in the case at bar, the mother’s share of her deceased husband’s estate, might have been increased by the death of one of her children, if she had been preferred by the statute to the brother or sister; but if the statute of distribution sentitles the latter to her exclusion, then her rights remain precisely as they did at the testator’s death.

In providing that “ in the event of my wife’s marriage after my death, it is my wish that my property be divided according to law, and she to receive her lawful right of all my' effects,” we are to understand that the testator referred to the statutes of descent and distribution. Clay’s Dig. 168, § 2.; 172-3, <§4 3, 4, These statutes are the paramount law upon the subject, and must control and determine the fights of the parties : especially as the testator was domicilled here, and the real estate of which he died seized was situated within this State. De Sobry v. DeLaistre, 2 H. & Johns. R. 191; Dessebats v. Bergnier, 1 Binn. Rep. 336.

By the act passed in 1806, brothers and sisters, in case of intestacy, exclude the father or mother. Clay’s Dig. 168, 2; 191, $ 1. The statute of 1812, “concerning dower,” provides, that “ one third part of all the lands, tenements and hereditaments of which her husband died seized, or possessed, or had before conveyed, whereof said widow had not relinquished her right of dower as heretofore provided for by law, which third part shall be and inure to her proper use, benefit and behoof, in and during the term of her natural life.” Clay’s Dig. 172, § 2. By the act of 1826, it is enacted, that when a husband dies intestate, or shall make his last will and testament, and not make provision therein for his wife, as expressed in the first section of the act of 1812, she shall be entitled to share in the personal estate in the following manner, viz : “ if there be no children, or but one child, she shall be entitled out of the residue left after paying the debts of the deceased, to one half; if there be more than one child, and not more than four, in that case shall be entitled to a child’s part; but if there be more than four children, then and in that case she shall be entitled to one-fifth part in absolute right.” Clay’s Dig. 173, § 4.

It is perfectly clear, considering these several enactments together, that the female petitioner, at the death of her husband, was entitled to but one third of the realty as dower, and one-fourth of the personal estate “in absolute right.” This would have been her proportion, had her husband died intestate, and it is not pretended she now occupies a more favorable position, in respect to the extent of her interest, than she would then have done, or if she had dissented from the provision which the will makes for her. We think her rights as to the quantum of interest are precisely the same as they would have been in either of the alternatives supposed. One of the children provided for by the will, dying after the testator, his share must go to the brother and sister, to the ex-elusion of the mother. This view is decisive of the cause, and the consequence is, that the decree of the orphans’ court is affirmed.