McReynolds v. Jones , 30 Ala. 101 ( 1857 )

STONE, J.

In considering this case, we propose to confine our investigations to the points made by the petition, as that is the foundation of the proceeding. We are thus relieved of all questions relating to the appointment of the administrators, the petition being silent in relation thereto. — Shackelford v. King, 25 Ala. 169.

It is true, as alleged, that the application by the widow, to have her share of the personal estate allotted and distributed to her, was premature. The estate had not been reported solvent under section 1771 of the Code, and the eighteen months contemplated by section 1772 had not expired. But we regard these provisions as intended for the protection and security of the administrator. If he does not object, we think the widow who procured the order, and who is benefited by coming earlier into the possession of her distributive interest, cannot be heard to complain. — Ex parte Edward Henry, 24 Ala. 638-648.

Bills of exceptions are to be construed most strongly against the .party excepting; and where two constructions can be fairly entertained, we must adopt the one which will affirm, rather than that which will reverse the case. Barnes v. Mobley, 21 Ala. 238; Caines v. Harvin, 19 Ala. 491; Bryan v. Ware, 20 Ala. 687; Sammis v. Johnson, 22 Ala. 690; Furlow v. Merrill, 23 Ala. 705; McElhany v. The State, 24 Ala. 71; Morris v. The State, 25 Ala. 57. We must also regard the record as importing absolute verity. — Deslonde & James v. Carter, June term, 1856.

The bill of exceptions shows that the probate judge made the following entry on his memorandum book, or blotter: “January 15th, 1855, Estate of John McBeynolds, deceased. Commissioners appointed to divide negroes, make report, &c.” It does not show, however, that this was all the evidence that the report had been confirmed, on which the probate court, acted. Looking into the record, on page 7, we find wbat purports to be a copy of an entry on tbe minutes, dated January 15th, 1855, the day on which the report was made, which affirms that the report was confirmed. There is nothing in the record which negatives the idea that both these pieces of evidence existed, and were produced on the trial in the court below; and under the rules above laid down, we are forced to the conclusion that they were. It is thus manifest that the commissioners’ report of the division of the personal property was confirmed, before the petition of the appellant was filed.

The counsel for appellant has submitted a calculation, the object of which is to show that the dower and distributive interests of Mrs. McEeynolds can be allotted to her in value, without disturbing the slave property; and as it was the evident design of the testator to manumit his slaves, as shown by the specific bequest to that effect, it is argued that it was the legal and bounden duty of the commissioners to so divide the property as to leave the express provisions of the will operative as far as practicable. The personal estate, other than the slaves, is not of value sufficient to pay the debts and expenses of adnainis-tration*, and leave a fund sufficient to pay the widow’s share, which is one half the personalty. To mate up this deficiency, the argument brings in the lands left after the allotment of the dower, and seeks to regard them as money, because they were devised to be sold.

We admit, in a proper case, the correctness of the principle contended for; viz., lands, devised to be sold, become, as to all persons who take under the will, money. So money, bequeathed to be laid out in land, becomes realty. See the authorities on appellant’s brief. The argument, when applied to this case, proves too much. The will devised the entire real estate to be sold; and if this doctrine of conversion be applied to a part of the land, it should, for the same reason, be applied to the whole. This would have the effect of destroying the dower proper; and, instead of giving the widow a life estate in the lands, as the statute provides, it would confer on her the absolute title to the money for which the land should be sold.

Let us take another view of this question. If this doctrine be applicable to this case, it must govern all other similar eases. Suppose Mr. McReynolds had owed debts sufficient in amount to consume both his personal and real estate, and had devised his lands to be sold. "Would it be contended, in such case, that the widow could not claim dower in the lands, but must take her chances for distribution out of the money? money that would.be consumed before it reached her ? Or, suppose the entire personal estate be bequeathed to be laid out in lands; will this have the’ effect of reducing the widow’s distributive interest to a mere dower, or life estate ?

We think the entire position indefensible. It rests on the erroneous assumption, that the widow can claim both-against the will and under it. — Mitchell v. Johnson, 6 Leigh, 461. Section 1609 of the Code declares, that “the widow may in all cases dissent from the will of her deceased husband”; and in such case “take her dower in the lands, and of the personal estate such portion as she would have been entitled to in case of intestacy.” Neither the letter nor the spirit of this section can be carried out, without according to the widow the same interest, and in the same form, as the statute confers in ease of intestacy. Its purpose was, to place her claims entirely beyond her husband’s control. To hold otherwise, would clothe the husband with power to bequeath specifically the most- desirable half of his estate, and thus cast his widow upon the refuse for her distributive share.

There is no error in the record which is available to the appellant.

Judgment affirmed.