Vaughan v. Vaughan's Heirs , 30 Ala. 329 ( 1857 )

HICE, C. J.

In Hilliard and Wife v. Binford’s Heirs and Administrators, 10 Ala. 977, a construction was given to the acts of 1806 and 1812 in relation to dower, which has ever since been acquiesced in, and has, without doubt, been acted on as the sound exposition of those acts, by testators in framing their wills, as well as by persons deriving title under wills; and has thus become a rule of property. We do not feel authorized now to overturn that construction. And according to it, where the will of a deceased husband makes any provision for his wife, either by a bequest to her of any part of his personalty, or by a devise to her of any part of his realty, and the provision does not plainly appear from the will to have been intended in addition to her dower, her failure to signify her dissent from the will, within one year after its probate, is a bar to her right of dower.

It is also settled in this State, that where the testator owned realty and personalty, and his will purports to dispose of both, but is valid only as to the personalty, a provision, that his property should be kept together, and the whole of the proceeds applied to the support and education of his wife and children, is inconsistent with dower and the distribution of the same estate, and is sufficient to put her to an election under the acts of 1806 and 1812; and that, if she does not waive that testamentary provision, within one year after the probate of the will, she will be barred of her right of dower. — Hilliard v. Binford, contra; McLeod v. McDonnel, 6 Ala. 286.

According to the principles thus settled, the widow in this case shows no right to dower ; and there was no error in dismissing her bill, so far as it asserted a claim to dower.

The only remaining matter to be considered, is the right asserted by the widow to recover in this suit fifteen slaves and their hires. The only foundation on which she bases that right, is that clause-of the will of her husband, which is in the following words: “If my wife never marries, she is to pick out fifteen of my best negroes, and keep possession of them during her natural life, or her will and pleasure ; but the income, or profits, arising from said negroes lohich she may select, is to be applied to her support and the education of my children.” Under that clause, the picking out of the fifteen negroes by the widow, was in the nature of a condition precedent; and if she did not pick them out before she filed her original bill, and was not prevented from picking them out, she cannot recover them or their hires in the present suit. But if, after the expiration of eighteen months from the grant of letters, and during her widowhood, she did pick them out, and give notice thereof to the representative of the estate, she thereby acquired, under the will, the equitable light to their possession and hires from that time. That right was, of course, subordinate to the claims of creditors of the estate, and to the protection which the law owes to the representative of the estate; but it could not be defeated without proof that the condition of the estate was such that the retention by the representative of the fifteen slaves so picked out by her, was necessary to protect him against the claims of creditors of the estate, or of those entitled to- specific legacies. And if, after she so picked out the fifteen slaves, and gave notice thereof to the representative, he failed or refused to assent to the bequest of them to her, and to surrender them to her, and his failure or refusal is not necessary to his protection against the claims of creditors of the estate, or of those entitled to specific legacies, she may resort to a court of equity, to compel him to assent to the said bequest, and to surrender to her the said fifteen slaves so picked out, and to account for their hires.

As she was not prevented from picking out the fifteen slaves, and did not pick them out before her original bill was filed, she cannot recover them or their hires in this suit. For, although she did pick them out, and give notice thereof to the representative of the estate, after this suit toas commenced, that cannot help her in the present suit. A complainant cannot recover in a suit, upon a cause of action which did not accrue until after that suit was commenced. — Hill v. Hill, 10 Ala. 527.

The bill was dismissed without prejudice, so far as it related to the fifteen slaves. That was correct. The complainant can proceed herereafter for those slaves, without prejudice from anything said or done in this cause.

There is no error in the decree of the chancellor; and it is affirmed, at the costs of the appellant.